
    MARY HEATH, Respondent, v. THE BROADWAY AND SEVENTH AVENUE RAILROAD COMPANY, Appellant.
    
      Evidence—Disclosure of inf ormation acquiredby witness in attendance upon his patient in a professional capacity, employment in that capacity must
    
    
      t appear.
    
    In order to enforce the prohibition against disclosure contemplated by the statute, it must clearly appear that the witness was attending the party in a professional capacity, and the information acquired by him, and as to which he was called to testify, was acquired in that attendance, and was necessary to enable him to act in that capacity. The burden of proof' that such prohibition exists, rests upon the party claiming that such prohibition shall be enforced.
    In the case at bar the exclusion of the testimony held to have been error.
    Before Freedman and O’Gorman, JJ.
    
      Decided February 6. 1890.
    
      Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying motion for a new trial made upon the minutes of the judge at the trial.
    
      Root & Strong, for appellant, argued:—
    That their exceptions, taken on the trial to the rulings of the court sustaining the objections of the plaintiff to the testimony of Dr. William A. Ewing as to conversations with plaintiff, on the ground that he was the plaintiff’s physician and that the communications sought were confidential and inadmissible, were well taken.
    
      Vanderpoel, Cumming & Goodwin, attorneys, and Benj. W. Franklin and Henry Thompson of counsel, for respondent, argued:—
    The testimony of Dr. Ewing as to the conversations had with plaintiff respecting the circumstances of the accident detailed to him by the plaintiff in reply to interrogatories of the physician was properly excluded. Of Dr. Ewing it may be said that he had been retained by both parties. He was sent for by a friend of the plaintiff’s on her behalf, and he was directed to make an examination of the plaintiff by the president of the defendant.
    The privilege given by the statute, as the court say in Westover v. Ætna, Ins. Co., 99 N. Y. 56, is absolute. ‘ The seal of the law placed upon such disclosures can be removed only by the express waiver of the person mentioned. There does not seem to be left any room for construction. The sections (§§ 834-836) are absolute and unqualified.” Section 834 is as follows : “ A person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity.” Section 836 provides : “ The last three sections apply to every examination of a person as a witness, unless the provisions therefor are expressly waived by the person confessing, the patient or the client.” The privilege, therefore, depends upon the relation of physician and patient, and not upon the circumstances under which it was created.
    The relation of physician and patient existed between Dr. Ewing and the plaintiff. He says “ a letter' was sent to me" purporting to come from a friend of Mrs. Heath, stating that a lady had been injured, a lady residing at 1558 Broadway, and the letter was sent to my office to attend to it, and I immediately went down to 1558 Broadway and inquired for Mrs. Heath. I asked the servant to say to Mrs. Heath that a gentleman would like to see her. I did not send my name.” Mrs. Heath came in and then the doctor continues, “ Then I gave her my name and stated that I came on behalf of the Broadway and Seventh Avenue Railroad Company, learning that she had been injured.” * * * * “ Then I proceeded to -examine her knees, of which she complained.” * * * * “ Then after the examination of the knees I examined her side, because complaint was made of pain in the left side.” * * * * “ The side was bared, and I was able to map out the ribs very readily. I could feel the edges of the ribs to their full extent, etc.” Upon objection being made to his disclosing the communications made by Mrs. Heath, he * undertakes to get in the testimony by a general statement, “ I can’t exactly say the words I used, but I gave her to understand that I came on behalf of the Broadway and Seventh Avenue Railroad Company.” The letter was sent from a friend of Mrs. Heath to the president of the company, and he in turn sent it to Dr. Ewing to attend to it. It is thus obvious that Dr. Ewing attended the plaintiff upon the defendant receiving a request from her or in her behalf for medical aid. She desired a doctor to be sent to her, and the doctor came in response to that invitation. When we consider the plaintiff’s own testimony we find it still more manifest that, in the plaintiff’s opinion, at least, Dr.- Ewing was a physician attending her as such, and as much under the rules of law respecting physicians as Dr. Rider. It is a little difficult to understand by what theory defendant concludes that Dr. Ewing was not under the prohibition of the statute forbidding him to disclose information acquired while in attendance upon the plaintiff. If it be upon the notion that the defendant’s president, having become liable to pay the physician, has therefore a right to control his actions and speech, the answer is, the point is decided otherwise in Grattan v. The Metropolitan Life Insurance Company, 80 N. Y. 281; S. C. 92 Ib. 274; People v. Murphy, 101 Ib. 129. If it be upon the idea that Dr. Ewing was in some way interested in belittling the injuries of plaintiff, and was sent to her ostensibly in reply to a letter asking for help, but really as a sort of detective to entrap the plaintiff in her speech, then the testimony of Dr. Ewing and the plaintiff entirely explodes that theory. But the purpose for which the doctor went to see the plaintiff is of no importance, except as it bears upon the question of what the relation was that existed between them. It is not enough if Dr. Ewing understood that he was in the employ of the defendant and made his examination for the very purpose of this case, and for getting information against the plaintiff and disclosing it in a suit at law, provided that the attendant circumstances were such as to reasonably lead the plaintiff to suppose, and she did in fact suppose, that that relation existed between them. People v. Stout, 3 Park. C. R. 670.
    The tendency of the courts of late years has been to apply very rigidly and strictly the statutory rule of the common law now contained in sections 834 and 836. Where a question arises upon the evidence whether the information obtained was necessary to enable the physician to act, or whether the relation of patient and physician existed, it is for the court and not for the physician to determine, although the statement of the physician should be considered by the court in determining the question. Bacon v. Frisbie, 80 N. Y. 394, 399. And in the absence of any proof upon the subject, it will be presumed that the information would not have been imparted, except for the purpose of enabling the physician to prescribe for the patient, and that it was necessary for thatpurpose. Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 282, 299; 92 Ib. 294, affirming 24 Hun, 47. It does not matter that no prescription was made or intended to' be made, nor does it matter that the physician was called by a friend of plaintiff instead of being called by herself personally.” Matter of Freeman, 12 N. Y. St. Rep. 175; The Grattan cases (supra). The statute is not confined to information of a confidential nature. It is sufficient that the person attended as a physician upon the patient, and obtained his information in that capacity. Renihan v. Dennin, 103 N. Y. 573; People v. Murphy, Ib. 126; Westover v. The Ætna Ins. Co., 99 Ib. 56; Edington v. Mut. Life Ins. Co., 67 Ib. 185; 77 Ib. 564; Sloan v. N. Y. C. R. R. Co., 45 Ib. 125. To the same effect are the very recent and important decisions of People v. Murphy, 101 N. Y. 129; Renihan v. Dennin, 103 Ib. 573; People v. Schuyler, 106 Ib. 298; Matter of Coleman, 111 Ib. 220; Loder v. Whelpley, 111 Ib. 229.
   By the Court.—O’Gorman, J.

This action is brought by the plaintiff to recover damages against the defendant company, for injury inflicted on her by reason of the negligence of the conductor on one of defendant’s cars in starting it suddenly while plaintiff was alighting, whereby plaintiff was personally injured and incurred pecuniary loss.

A verdict was rendered in favor of the plaintiff for $2,513.86, and judgment entered thereon. The defendant moved for a new trial, which motion was denied and appeal was taken. Appeal was also,' taken from the judgment.

An important question to be considered now is, was error committed at the trial in the rejection of certain testimony offered on the part of the defendant of a statement made by the plaintiff to the witness, Dr. Ewing, of the circumstances of the accident.

The counsel for the plaintiff contends that it was inadmissible, under section 834 of the Code of Civil Procedure, as calling for the disclosure of information which the witness acquired in attending his patient (the plaintiff) in a professional capacity.

The material facts as they appear in evidence are these :—

A few days after the accident occurred to the plaintiff, and while she was under the care and professional attendance of Dr. Rider, a person came to plaintiff”s house, and sent to her a message by her servant that a gentleman would like to see her. The plaintiff came to him in her parlor and he gave his name and said that he came on behalf of the Broadway and Seventh Avenue Railroad Company, learning that she had been injured. She asked him to walk back to her rear room. He did so, and there met Dr. Rider who was a lady physician. He had some conversation with the plaintiff as to the circumstances of the accident, and proceeded, in company with Dr. Rider, to examine the plaintiff’s knees. He moved the knee pans, then examined her side, which was bared for the purpose, and felt the edges of the ribs to their full extent. After finishing this examination, and assuring himself that there was no fracture of any rib, witness and Dr. Rider withdrew into the parlor.

He deposed that when he saw the plaintiff he gave her to understand that he came on behalf of the railroad company. He also said—“ Mrs. Heath gave me the particulars of the accident in reply to questions of mine.”

There is no substantial variance between the testimony of the plaintiff and that of Dr. Rider and Dr. Ewing on this subject. The plaintiff deposed that her doctor (Rider) brought Dr. Ewing into the plaintiff’s room. She does not remember whether Dr. Ewing told her his business. She was in pain at the time he carné. She did not send for him. Some one told her that he said that he came from the railroad and she must see him.

There is no evidence that Ewing prescribed for the plaintiff, consulted with the plaintiff’s doctor, or gave her any professional advice or suggestions as to the treatment of the plaintiff’s case, or gave, by word or deed, any reason to believe that he intended to render any professional service to the plaintiff. On the contrary, the evidence shows that his purpose and object were to procure for his employer, the defendant company, exact information about the extent of the plaintiff’s injury, and to elicit from her admissions as to the circumstances of the accident, and to place the information thus procured at the disposal of the defendant company, by whom he was employed.

Ewing testified that it was the intention of Dr. Rider to call in a surgeon in whose hands the case was to be placed. But it does not appear that there was any thought of seeking any professional assistance from Ewing.

In these facts I can see nothing to support the contention that Ewing was, at any time, attending the plaintiff in a professional capacity, or that the information acquired by him, as to which he was called on to testify, was acquired in attending plaintiff as a patient, or was necessary to enable him to act in a professional capacity.

In order to enforce the prohibition against disclosure, contemplated by the statute, it is necessary that these essential conditions should exist, and I do not find any authoritative decision of our courts that does not require them. The burden of proving the prohibition against disclosure, by the witness, is on the party claiming the prohibition to exist. People v. Schuyler, 106 N. Y. 298, 304; Edington v. Ætna Life Ins. Co., 77 Ib. 564; Stowell v. American etc. Co., 5 N. Y. Supplement, 235.

The authorities cited on behalf of the plaintiff on this subject do not seem to me to sustain her conclusion. In Renihan v. Dennin, 103 N. Y. 577, 578, the physician, whose testimony was admitted, was called in by the attending physician and went in a professional capacity to see the patient. He did not thrust himself into the presence of the patient or intrude there—he was called in by the attending physician.

In the case at bar, Ewing was not called in by Dr. Rider, or by any one else, on behalf of the plaintiff, and was' to all intents and purposes an intruder.

For the reasons stated, and inasmuch as the admissions or declarations of a party, if material to the issue, are always admissible against him, the exclusion of the testimony cannot be justified- on the ground that the witness was a physician. It was clearly relevant to the issue, and, if the answer of the witness had shown that the plaintiff had made to the doctor a statement inconsistent with the testimony given by her on the trial, it would have been quite material.

Under the doctrine laid down in Rosenberg v. Block, 102 N. Y. 255, 259, we must presume that the answer to the excluded question, if the question had been allowed, would have related to some material fact. The result is that the exclusion of the testimony must be held to have been error.

The appellant also complains that the condition of the plaintiff about a year after the accident, in consequence of an abscess which then appeared, was not connected with the accident with sufficient certainty to authorize the jury to take it into account in assessing damages.

The medical testimony on this point was admissible under the decision of Turner v. The City of Newburgh, 109 N. Y. 301, and it was sufficient to go to the jury for what it was worth.

And, inasmuch as the jury were expressly instructed not to give damages on account thereof, unless they were reasonably certain that the abscess was caused by the fall of the plaintiff from defendant’s car, the rights of the defendant were fully protected.

There are other questions in the case which it is not necessary to discuss.

For the error committed in the exclusion of the testimony hereinbefore referred to, the judgment and order appealed from should be reversed and a pew trial ordered, with costs to abide the event.

Freedman, J., concurred.  