
    Isabella Dougherty, Resp’t, v. Metropolitan Life Insurance Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 13, 1895.)
    
    
      1. Witness — Physician—Waiver.
    The reasonable construction of section 836 of the Code is that the provisions are expressly waived upon the trial, if a proper stipulation to that effect is produced thereat, and entered upon the record, regardless of the time when the waiver was executed.
    2. Same — Public policy.
    A waiver of the provisions of section 836 of the Code in certain cases is not contrary to public policy.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.
    
      W. J. Powers, for app’lt; Arnoux, Ritch & Woodford, for resp’t.
   Dykman, J.

This is an action by the plaintiff as the beneficiary under two policies of insurance by the defendant upon the life of one Francis Farley. The cause was tried at the circuit before a jury, and a verdict was rendered in favor of the plaintiff. From the judgment entered upon the verdict, and from the order denying the motion for a new trial upon the minutes of the court, the defendant has appealed to the general term of the court

Upon the trial the counsel for the defendant sought to prove by a physician who attended him at that time the condition of the health of the assured when the application for the second policy of insurance was made. The counsel for the plaintiff made objection to such testimony, and it was excluded by the trial judge-upon the ground that its admission would be against public policy. The counsel for the defendant excepted to the exclusin of the testimony, and that exception presents the first question for determination upon this appeal The question depends for its solution upon the interpretation of certain sections of the Code of Civil Procedure. Section 834 of that Code is this:

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.”

Sections 833 and 835 contain similar prohibitions against ministers of religion and attorneys and counselors at law. Then follows section 836, which contains this language:

“ The last three sections apply to any examination of a person as a witness, unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. But a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of the patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and sueli facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or -examination by the personal representatives of the deceased patient. * * * ”

The application for the second policy contained this stipulation :

“ The provisions of section 834 of the Code of Civil Procedure of the state of New York, and of similar provisions in the laws of other states, are hereby waived , and it is expressly consented and stipulated that in any suit on the policy herein applied for any physician who has attended or may hereafter attend the assured may disclose any information acquired by him in any wise affecting the declarations and warranties herein made.”

It does not appear that the testimony sought from the physician would have disclosed confidential communications, or any facts which would tend to disgrace the memory of the patient, and the evidence was not excluded upon that ground. The waiver, therefor, was not inhibited by the exception from the right to waive the privilege contained in section 834 of the Code. The exclusion of the evidence must, therefore, be upheld, because the waiver was not made at the trial, or because the inclusion thereof in the application was against public policy. The statute imposed silence upon the physician for the protection of the patient. T„he legislature locked up the secret, atid gave the key to the patient. He can forego the privilege, and unlock the mouth of the doctor. The statute requires that to be done expressly upon the trial, but there is no method prescribed for the accomplishment of the object. If the patient be alive, an entry upon the record at the trial by his counsel would be sufficient. In case of his inability to attend the trial, a written stipulation, signed by him, and entered upon the record, would remove the prohibition. That being so, it must certainly be immaterial when the stipulation is signed. In this case it was signed long before the trial in anticipation of that event, and with the design of having it used thereat. It cannot be assumed that the insertion of the stipulation in the application was ■ an idle ceremony. It was important to the company, and entirely within the competence of the assured. The reasonable construction of the statute, therefore, is that the- provisions are expressly waived upon the trial if a proper stipulation to that effect be produced thereat, and entered upon the record, regardless of the time when the waiver was executed.

We are now to inquire whether the provision for a waiver is contrary to public policy. The phrase is comprehensive, and its limit of operation is undefined. It may be asserted, however, that no action, proceeding, or method falls within its range, except such ns affects the public. A mere private act does not concern the public, and therefore such an act can never be contrary to public policy. Before a statute or a contract can be declared void because it is in contravention of public policy, the objection to it must be based upon some distinct principle. The general public can have no interest in the execution of the statute in question. Its operation can be neither inj urious nor disadvantageous to the public, and it is not opposed to good morals. It simply prescribes a rule of evidence between party and party upon the trial of a cause. The secrecy imposed upon the physician by the statute is evidently for the benefit of the patient. His communications are privileged, but the public has no concern in their suppression. If he waives his privilege, it cannot be insisted upon to exclude the testimony. It has ever been held that parties may waive their legal rights, and make stipulations in legal proceedings which shall control their rights in the conduct of a litigation. In re New York L. & W. R. Co., 98 N, Y. 447. What possible interest can the public have in the exclusion of the evidence of a physician respecting the physical condition of a private individual, where the patient himself raises no objection to such disclosure ? The chief justice, who expressed the opinion of the supreme court of the United States in the case of Hunt v. Blackburn, 128 U. S. 470, laid down the following rule upon the subject under consideration here, although in that case the question had reference to the rela* tian of attorney and client:

“But the privilege is that of the client alone, and no rule prohibits the latter from divulging his own secrets; and, if the client has voluntarily waved the privilege, it cannot be insisted on to close the mouth of the attorney.”

This statute has been frequently under consideration before the court of appeals in this state, and it has ever received a broad and liberal construction, and been so applied as to permit no invasion of the rights and privileges of the persons for whose benefit it was enacted. Judge Andrews gave a very lucid exposition of the statute in his opinion in the case of Buffalo L. T. & S. D. Co. v. Knights Templar & M. M. A Ass’n, 126 N. Y. 454 ; 38 St. Rep. 247, and closed with these words :

“ The statute should have a broad and liberal construction to carry out its policy. By reasonable construction it excludes a physician from giving testimony, in a judicial proceeding in any form, whether by affidavit or oral examination, involving a disclosure of confidential information acquired in attending a patient, unless the seal of secrecy is removed by the patient himself.”.

So far as we can discover, every case in the court of appeals is in harmony with the views thus expressed. We are committed to the same doctrine by our decision in the case of Foley v. Royal Arcanum, 78 Hun, 222 ; 60 St. Rep. 221. Chief Justice Brown, in the opinion in that case, said:

“It was entirely competent for the parties to stipulate what evidence should be received as to any fact upon which the defendant’s liability was made conditional, and the legislature could not change or impair the obligation.”

These considerations lead to the conclusion that the judgment and order should be reversed, and a new trial granted, with costs to abide the event.  