
    Israel Scher, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Testimony of a physician as to communications from his patient — a waiver to he effective must he on the “ trial or examination" — testimony, improperly admitted, tending to show that a party testified falsely — when it requires a reversal of. a judgment.
    
    Evidence given upon the trial of an action to recover damages for personal injuries, to the effect that after sustaining the alleged injuries, the plaintiff went to a physician who found him to be suffering from a rare disease, and that the plaintiff consented to being exhibited oefore a society of physicians at a public meeting and to the publication by the physician of an account of his disease in a medical journal, does not entitle the physician to testify, over the plaintiff’s objection, to communications made to him by the plaintiff, relating to the history of the disease, as, under the provisions of section 836 of the Code of' Civil Procedure, a waiver, in order to be effective, must be on the “trial or examination.”
    Where it appears that the communications testified to by the physician tended to show that the plaintiff had testified falsely as to the extent of the injuries resulting from the accident, the fact that the jury found a general verdict in favor of the defendant and, inferentiallv, that the defendant was not responsible for the plaintiff’s injuries, does not establish that the admission of the incompetent testimony of the physician was harmless, as if the jury had believed that the plaintiff testified falsely concerning the extent of his injuries, they were at liberty to disregard his entire evidence.
    -Patterson, J.,. dissented.
    
      Appeal by the plaintiff, Israel Scher, from a judgment of the ^ Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of January, 1898, upon the verdict of a jury.
    The facts are stated in the dissenting opinion of Patterson, J.
    
      Moses Feltenstein, for the appellant.
    
      Theodore H. Lord, for the respondent.
   O’Brien, J.:

We think under the authorities that the communications made by the plaintiff to the physician were privileged and that there had been no waiver even if the publication of the article and the public exhibitions were, as testified by the physician, though denied by the plaintiff, with the latter’s full consent. On this subject it was said in the case of Holden v. Metropolitan Life Ins. Co. (165 N. Y. 17): “ The statute (Secs. 834 and 836 of the Code of Civil Procedure) as it now stands, in positive and express terms requires the waiver to be made upon or at the time of the trial or examination. * * * The apparent purpose of that amendment' was to protect parties, their representatives and successors from waivers which should be inadvertently or improperly obtained previously to the trial of an action or examination of the witness. That in many cases injustice had resulted from such waivers * * * was doubtless the reason which induced the Legislature to adopt this amendment requiring the waiver to be made in the presence and under the supervision of the court before which the trial or examination was had.”

There being no waiver “on such trial or examination,” as provided by section 836 of the Code, but, on the contrary, an objection made to the physician’s violating the privilege, the ruling admitting the testimony was clearly erroneous.

It is claimed, however, that such ruling was harmless because the jury found that the defendant was not responsible for the injuries, and, as there was no liability of the defendant, the introduction of the evidence relating to the extent of the injuries could, at most, affect only the credibility of the plaintiff. This, it seems to us, is begging the whole question, for it appears that there was a sharp conflict as to the manner in which the accident occurred. Although we have not before, us all the testimony given on the trial; the record being in the form of a bill of exceptions, there is, as was proper in- such a record, a summarized statement that “ the plaintiff ' * * * testified himself as to the manner in which the accident happened,” and that there was, on this subject,’ “ a sharp conflict.”

It is not, therefore, a strained inference to conclude that the testimony of the plaintiff had a material bearing upon the burden which he had to sustain of showing the defendant’s liability for his injuries; and it is evident that the direct refutation by his physician-of what he had stated concerning his physical condition before the the accident, would tend to discredit his whole case. If upon the extent of his injuries it was shown that he had testified falsely — which was the tendency of the erroneous evidence admitted— then the jury would have the right, if they believed that the plaintiff’s evidence was willfully and knowingly false in one important particular of his case, to disregard his entire evidence; and it would have been the duty of the judge if such request were made, to charge that they were at liberty to do so. It seems to us, therefore, that upon the question of the defendant’s liability, the extent to which the jury would credit the plaintiff’s testimony was most material; and his credibility having been assailed and affected by improper and erroneous evidence, the error committed cannot be regarded as harmless.

We think, therefore, that the judgment appealed from is wrong and should be reversed and a new trial ordered, with costs to the appellant to abide the event.

■ Van Brunt, Pi J., and Laughlin, J., concurred ; Patterson, J.,. dissented.

Patterson, J.

(dissenting) :

Judgment for the defendant was entered in this action upon a general verdict .of a jury in its favor. The plaintiff’s appeal from that judgment is brought up on what may be called a bill of - exceptions, presenting but a single question which relates to the competency of testimony of a physician as to statements made by the plaintiff to him concerning a subject in no way connected with the issues in the case, except, perhaps, as to the question of damages. The action was brought to recover damages for personal injuries claimed, to have been sustained by the plaintiff through the negligence of the defendant’s servants in managing or operating a street railway car. The record before us gives no information as to the alleged accident in which the plaintiff suffered injury, how it occurred, what the fault or negligence ascribed to the defendant’s servants may have been, nor anything upon the subject of contributory negligence. The verdict of the jury being a general one, either or both of the issues of negligence of the defendant and the want of contributory negligence of the plaintiff must have been found in the defendant’s favor.

It appears in the record before us that the plaintiff had testified that some seventeen years before the accident occurred he had suffered from serious illness in Germany for a period of about seven years, during the greater part' of which time he had been in a hospital and confined to his bed. The defendant called as a witness a physician connected with a hospital in the city of New York, to which the plaintiff resorted for treatment, after the alleged accident referred to in the complaint. That physician was permitted to testify that he treated the plaintiff, who was suffering from a very rare disease of so interesting a character that the plaintiff was exhibited before a society of physicians at a public meeting and an account of the plaintiff’s peculiar disease was published by the witness in the New York Medical Journal, and he swore that the account was published with the plaintiff’s knowledge and approval. In the course of his examination this witness was asked the following question: “ Q. Now then prior to the preparation of the article published by you in the Medical Journal of February 1st, 1896, did this plaintiff tell you that seventeen years previously he had severe pains in the legs lasting day and night and forcing him to stay abed for fully seven years % ” That was objected to on the ground that it was privileged. The objection was overruled. This question was in no way related to the subject-matter of the action so far as the issues upon which the question of the liability of the defendant depended. Assuming that all communications made by the plaintiff to this physician were privileged and he was improperly allowed to give this testimony, it still remains that it has been found by the jury that the defendant is not responsible for any injuries sustained by the. plaintiff in this, action, and we are concluded by that finding. If there is no liability of the defendant, the question sought to be raised on this record is a moot one. It is said that the testimony affected the credibility of the plaintiff, but that is pure assumption, for what the plaintiff testified to with respect to the main issues does not appear. On the finding of the jury there was no negligence of the defendant’s servants, and, therefore,' there could have been no recovery.

The judgment appealed from'should be affirmed, with costs.

Judgment reversed, hew trial ordered, costs to appellant to abide event.  