
    Ellen E. Warner, Respondent, v. Flavius Packer and Sidney D. Wilgus, Appellants.
    Second. Department,
    June 17, 1910.
    Physician — negligence — examination as to sanity — evidence — presumption — jury — expert testimony.
    Where 'an examiner in lunacy is paid to examine a patient as to her sanity, he impliedly represents that he possesses the degree of learning and skill ordinarily possessed by the average examiner in lunacy, and undertakes to use such skill and learning, to exert bis best judgment in the application thereof and to exercise reasonable care.
    No presumption of negligence on the part of the examiner arises solely because it is established that the patient was sane at the time he declared her to be insane, although such evidence bears on his qualifications and may indicate a failure to fulfill his obligations.
    Evidence in an action against examiners in lunacy for negligence in declaring plaintiff insane, when in fact she was sane, examined, and held, to fail to sustain a verdict for the plaintiff.
    ' It seems, that the j ury would be precluded from passing on the question of negligence in a diagnosis if .they were unaided by expert testimony.
    Appeal by the defendants, Flavius Packer and another; from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the coiinty of Rockland on the 24th day of October, 1907; upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 6th day of November, 1907, denying the defendants’ motion for a new trial made upon the minutes.
    
      James Taylor Lewis, for the appellants.
    
      Stillman F. Kneeland, for the respondent.
   Jenks, J.:

The action is for negligence. The plaintiff had been confined for a time in an insane asylum upon her husband’s petition, to which was annexed a certificate of the defendants as- examiners in lunacy that she was insane and was a proper subject for custody and treatment in some institution for the insane. She complains that the defendants made a false, pretended and grossly negligent examination of her as to her mental-condition ;■ that she was not insane then Ox; at any time; that the defendants, willfully failed and neglected to. úse or to exercise reasonable and ordinary" care, skill and diligence to ascertain her true mental condition or to make a prudent and careful inquiry and to obtain proof whether she was sane or insane, and failed to exercise -their best judgment as to her sanity, but with gross and culpable, negligence based their opinions upon false and "interested statements made to them by plaintiff’s- husband.' She gained a verdict for $25,000, and the defendants appeal "from the judgment thereon. ; y

The defendants were feed by the h-usband-to make an - examination. Thereupon they implie.dly represented that they possesséd the reasonable, degree .of learning and skill ordinarily possessed by the average, examiners in - lunacy, and in the rendition of the services they undei-took to use such skill and learning, to exert their best" judgment in the application, thereof "and to exercise reasonable care. (Pike v. Honsinger, 155 N. Y. 201, 210 and cases cited.) The burden was upon the plaintiff to show that the defendants fell short in their qualifications or their obligations, (Winner v. Lathrop, 67 Hun, 511; Georgia, Northern R. Co. v. Ingram, 114 Ga. 639.) There is no ‘proof that the statements "made by the husband were false and pretended. The plaintiff did not advance’ the proposition that the defendants were mot qualified. On the other hand, tire evidence shows that they were educated in. their pimfes^ sion, alienists who as.stroll had filled important public positions, and. wéfe of large experience gained frofn thousands of examinations. We, therefore, need, not consider this ground of liability. The question , on this appeal is whether-the plaintiff made proof to justify the verdict of negligence in (to quote the. plaintiff’s charge) the ascertainment of “ plaintiff’s true- mental condition.” The plaintiff’s-case consists largely of testimony of. lay witnesses, her acquaintances and friends, that in their opinions specified words and acts of the plaintiff were rational. The plaintiff contended that at all times she . was sane: Such contention, so. far as it related to the time of her examination, was essential, inasmuch as' she could not have • bee» harmed by a certificate of the' truth (Pennell v. Cummings, 75 Maine, 163) unless her insanity did not require restraint and treatment. A -certificate of her insanity when she was sane could, establish error of judgment, but for that the defendants were not liable. (Williams v. LeBar, 141 Penn. St. 149; Pike v. Honsinger, supra.) And it could be considered as evidence bearing upon the defendants’ qualifications or indicating failure to fulfill their obligations as to skill, learning, care and best judgment in the case. But no presumption of negligence in the defendants arose solely upon the establishment' of her sanity at the time of her examination by the defendants. (Williams v. LeBar, supra.)

The defendants testified in detail as to their professional conduct. The testimony of the plaintiff was contradictory, but not contrary to that of the defendants. She testified that an examination was made, but her version varies radically from the versions of the defendants, and upon rebuttal she contradicted certain features thereof described by the defendants. Her contradictions were directed to many of her statements testified to by the defendants which to the lay mind would indicate her abnormal mental condition. As the question of veracity was for the jury, the plaintiff,, when we consider the correctness of the verdict, is entitled to have her version accepted by us rather than that of the defendants. She testified upon her direct examination that the defendants were introduced to her as nerve specialists, of whom one asked her a few questions and the other did not speak; that they were with her about fifteen minutes; that they asked her one or two questions about her general health and drew from her some facts in relation to her recent experiences with her husband ; that they took no notes; that they asked her whether she had ever thought of ending her life, recurring to that question two or three times, and that there was something said about readers which she was making. The reference to the readers is explained by the fact that the plaintiff was the author of several text books used in schools.

The version of the defendants, revised Toy exclusion of the parts thereof contradicted hy the plaintiff on rebuttal, is as follows: The plaintiff was lying on a sort of lounge chair or steamer chair, covered with blankets. She seemed anxious. She was very pale in appearance when they went in, and then her face flushed, her whole manner changed and she showed intense anger and excitement. After the husband left the room the defendants gave their names and said that her husband had asked them to make' an examination, which they would be glad to do if she were willing, but that they did not wish to distress her, whereupon .she said it was one other husband’s schemes to annoy her and he would ultimately drive her insané.When asked about her health, she said it was not very good, that there Was sufficient cause — her husband — who forced her to.work . ■ out of doors, and that, she had to haul stones. She then rosé and-showed the path she had made outside. She said her- husband had . deliberately walked across' -the lawn to' annoy her. . Dr. Packer asked her again about injuring herself, and she said she would not, ■ that she would not bring disgrace on her family. The husband returned and she acted very- angry towards him. ■_ She said- she had ' to move her bed because of a leak in the roof. She became very much excited at four separate times-during the examination. She would pale and flush and her pupils would dilate and her muscles Would-contract and she would sit up. Finally she -rose hastily from her chair, started across the room and said, “ I will show you about' my work!” She spoke of her works, and she arose very- hastily from the chair and went across the room quickly to a little desk she had there, and said she. would show them these readers, but she did not have the readers, but -had some descriptive pamphlets in regard to the readers, and they read those, and she had some printed ' papers in regard to the readers — some printed description of the readers, she said she was the “ Savior of the English speaking races,”-she spoke of. the book and said it was the.finest that had been written. During that time she talked very quietly about it, and she said she would send them copies of the books. Then she.' returned-to the chair, she spoke of her work and her accomplish- . ments, and showed them a statement a number of different times. - In regard to her physical condition, she looked fairly well, excepting- that she was pale and very anxious,- and she looked to be all right excepting during the period of excitement,-when she would become excited and speak in a very loud voice. She became excited tó the extent that she spoke and shouted in a very loud voice, and she showed great excitement during this time, and then again she ‘ would become moré composed. As regards her physical condition, it was very fail. They did not make a record of her pulse, but / Dr. Packer took her pulse and it was somewhat accelerated. She' appeared ansemic when Dr. Packer looked at her at first, but in looking at her again he found her color was very good ; that her pupillary reflexes were all right, and the various reflexes were all right. Dr. Wilgus testified that after he and Dr. Packer came to the plaintiff her husband said: “ Nellie, I have brought these two physicians to examine you, because I thought you were sick, they will talk with you, and will see if anything can be done for your good.” Mrs. Warner seemed out of patience. She appeared angry and made a remark to Mr. Warner, but made no other objection to their remaining there. Mr. Warner stepped downstairs and left them alone with his wife. Dr. Wilgus permitted Dr. Packer to do most of the- questioning, nevertheless following what was said very closely. Mrs. Warner was asked how she felt ill, and was asked to discuss the matter in general. She said that she had been feeling bad, had been nervous for some time, that she had a great many troubles at home, and that she was very much worried; that Mr. Warner had been making trouble for her for a number of years, and that he was gradually getting worse; that, in her opinion, he was anxious to obtain control of her property and was taking steps to drive her to commit some act which would permit of his obtaining the property; that it was part of the scheme for him to control her property; that these troubles had come on her within the past few years; that he had been annoying her in all sort of ways; for instance, that on one occasion he entered her room, after having been working out of doors, removed a shirt in which he had been working and threw it on a chair on which one of her dresses was placed; she thought he did this with some malign intention to exasperate her; this had occurred a year or two before, if the witness remembered rightly, and yet she brought that up as one of his supreme insults, as she called them. (The plaintiff on rebuttal did not deny absolutely this testimony as to the shirt. She said that she did not think she spoke of it.) She said they had moved to Dellview after they purchased that property, for the purpose of benefiting her health; that she was very much run down and that she was unable to control herself a great part of the time;that her husband was trying to drive her to some- extreme act by leaving leaky roofs-over her head, and by meddling with her clothes and giving her insufficient clothing to wear, and all sorts of things of that kind". The witness .thinks that she mentioned that her husband' squandered her money. She said something about their buying Dellview, with the intention of putting up a house there, and that they had erected the foundations, which were observable, but, right after the foundations were erected, that her husband had contented himself with putting up some chicken coops, and making her live in the barn, which was an unfinished building-. During the examination Mrs. Warner did speak of her husband squandering her money. When Mr. Warner returned to the room with a pail of water Mrs. Warner stopped conversing with them when he entered the house and when she heard his step on the stairs. Hé came up the stairs and put the water on a small stand at the head of the stairs. She looked at him in a very angry way, and stared him out of countenance, and he went downstairs without a word. After he was gone Mrs. Warner said that at times she-was unable to control herself owing to her nervous and rundown condition, and, as she talked with them over these family difficulties, she became, wrought up. She had little or no control of her emotions.

The defendants testified without contradiction that' they were strangérs to the plaintiff and to her husband until the latter came to retain them, with a letter of introduction to Dr. Packer. Dr. Packer testifies that the plaintiff’s husband laid before him in-a worried and rather impressive way the conduct and the doings of the plaintiff 'as follows: “Mr. Warner said he feared he would have to send Mrs. Warner to a sanitarium; that for three or four years she had been acting strangely, and that for two -or three years they had a great -deal of trouble; that there was nothing he could do to please her, that she attacked him, had threatened him, and had -also threatened to injure herself, and he said he did not want- to do it. He said she was sick, that the city life disagreed with her, and they finally purchased a place in the country. He said she was nervous and ill,, and he took her to the country, and that they bought this country home, hoping that she would recuperate. * * * He Said she worked out of doors in the hot sun carrying these stones and trundling a barrow, and exposed herself, and it injured her health, and that he could not control her in- this, and he said when he went home at night -that she would attack him, and that she left notes around the house for him instead of speaking to him, and that those notes were in the form of agreements which he had to sign, and which were utterly ridiculous, but he had to sign them—he said that he had to sign those, and he said that they had so much trouble over the expense of the house, and the expense of the two, that it was agreed they would divide all the expenses, and that it was extremely humiliating ■ td him, because he had to divide the carfare even, and he spoke of those things as showing her state of mind, and he wanted to know what I thought. He asked me for an opinion. * * * He also. said that she would scream and scream until it had disturbed the neighbors, and they had finally had to let their house, or their rooms, or whatever it was; he gave me the facts which are asked for on the fourth page of the certificate, after the article requiring her age, condition, and so,forth, which is just prior to the affidavit. * * * I did not know Mr. Warner before this day.' I next saw Mr. Warner a few days after that. Four or five days after; then he came the second time in regard to the case. I did have a further conversation with him with reference to his wife’s case. I had a further conversation with him, and got those facts on the fourth page of the certificate at the time of the first visit, it was at the time of the second visit. At the time of the second visit he said he had decided; at the time of the second visit he asked me to examine Mrs. Warner, and we went over many of the facts as enumerated above. After this conversation. I proceeded to Héw City.” Dr. Wilgus testified : “ I did have a conversation with Mr. Warner in reference to his wife’s case on the occasion of this trip to Hew City, on July 13th, 1904. Mr. Warner said that, he told me on the train that he and Mrs. Warner had known each other for a number of years, and that they had been married, for, I think, about ten years;' I will say that roughly; I don’t remember the exact length of time; that they had lived a very happy life, and were apparently congenial until about 1900. Mr. Warner said that they had gotten along very well until about 1900, and between 1900 and' this time in 1904,. Mrs. Warner had threatened to commit suicide; that she had assaulted him; that she had made him sign. very unusual agreements, including much that he considered nonsensical; that she had made him agree to share half the expenses of the house account with her; that she accused him of being a thief, and of having designs on her property, and even, on her life; that in order to benefit her health they had agreed to purchase that place at Dellview, and that she had gone out there in the attempt to recuperate; that things had progressed no better from the time that.she had gone to Dellview, and in fact that his wife had become even more exacting, and that he felt that for her good something ought to be done for her welfare.” Some of the statements of the husband as testified to by Df. Wilgus are corroboi'ated by the writings of the plaintiff read in evidence.

A -striking feature in the plaintiff’s case is the omission of any scientific or expert evidence as to the course pursued by the defendants in the examination, as to what was done that the average examiner in lunacy would-not have done, or as to what was not done which such.an examiner would liave'done under the circumstances of the case. We know insanity is a mysterious disease ; that it may exist without physical indications, is often cunningly concealed so as almost or altogether to baffle detection ■ even by a specialist, or' may be so occult as to cause most eminent alienists to' clash as to its existence in an instance. The diagnosis of it is recognized as a difficult task. (Balfour Browne,.Medical Jurisprudence of Insanity, 320; Mann’s Medical Jurisprudence, 113.) Wharton & Stille on-Medical Jurisprudence (Vol. 1, § 1240) write: “In brief, the task of a physician when' he examines a patient for certification is to make a diagnosis. If, for any reason, he is not able to make a diagnosis, he should not sign the certificate. The whole art of diagnosis may be involved in the case, and there is no rule for it except to have a reliable knowledge of insanity.” It seems to me that the very nature of the subject — the question of negligence in a diagnosis—would almost preclude.a jury from passing upon it by their common knowledge unaided by any scientific or expert information whatever, or by the testimony of any witnesses of special knowledge and skill. Yet there is'not in evidence any standard for comparison of the conduct of the defendants with that which was required, of them. In Van Wycklen v. City of Brooklyn (118 N. Y. 429) the court, per Brown, J., say : “ While it is no longer a valid objection to the expression of an opinion by a witness that it is upon the precise question which the jury are to

determine (Transportation Line v. Hope, 95 U. S. 297; Bellinger v. N. Y. C. R. R., 23 N. Y. 42; Cornish v. F. B. F. Ins. Co., 74 id. 296), evidence of that character is only allowed when, from the nature of the case, the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable. (Ferguson v. Hubbell, 97 N. Y. 507; Schwander v. Birge, 46 Hun, 66; Greenl. on Ev. vol. 1, § 440, and note.) Familiar examples of the admission of evidence of this character are cases involving questions of medical practice and skill, and cases involving genuineness of handwriting.” See, too, Dougherty v. Milliken, 163 N. Y. 533; Northern Pacific Railroad v. Urlin, 158 U. S. 273; Rogers Expert Testimony, 148; Thomp. Neg. [2d ed.] § 7747 et seq. Link v. Sheldon, 136 N. Y. 1-10; Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612. In. Wood v. Wyeth (106 App. Div. 21) this court, per Bartlett, J., indicated the importance of such testimony as is lacking in this case, and said : “ I have been unable to find enough in the proof offered by the plaintiff to justify a finding that there was any lack, of professional intelligence, skill or care on the part of the respondent, either in deciding to perform the operation or in its performance, including the administration of the chloroform. The plaintiff sought to establish such negligence by the testimony of a medical expert, Dr. Harry Enton of Brooklyn ; but neither in answer to hypothetical questions nor in any other part of his testimony does he really express the opinion that what is shown to havé been done by Dr, Wyeth was contrary to the best or established practice of qualified surgeons in the treatment of such a case under similar circumstances.” Bor do I think that any negligence can be imputed in this case to the omission to make further inquiries, although it is recognized in a leading English case (Hall v. Semple, 3 F. & F. 337) that such obligation may exist. The husband’s narrative was of the relations between him and his wife — this plaintiff.— of her conduct and her bearing towards him. Husband and wife appeared as living under the same roof, and there is no indication that there was any one whom the defendants could' have consulted in corroboration of the husband, save, of course, the wife. IT pon consideration of the case in the light most favorable to the plaintiff," as is her due, I fail to find sufficient evidence.to. support the verdict. As I have said, I have not considered the full version's of the defendants of their examination. And I have not considered tile testimony of two eminent physicians, specialists in. insanity, called by the defendants (whose testimony upholds the defendants),' for' the reason that the hypothetical questions addressed" to those witnesses' embodied features Vhich, though testified to by the defendants, were Contradicted by the plaintiff. I should notice one bit off testimony of the defendants, which, though contradicted by the testimony of the plaintiff, nevertheless lias the corroboration of probability, found in her writings. Dr. Packer testified that in the course of her examination •the plaintiff spoke about a brook hear her house, “ that the. brook babbled on; that it did not see the loveliness of the trees and rocks and that it would drown her .as quickly as it. would a rat, and that the name .of this brook was Elmer Warner ” (her husband). Dr. Wilgus testified that the patient said that she had become so nervous that she thought of suicide and “had even gone to the brook with, the deliberate intention of doing away with her life, but when she heard the rippling of the Water over the stones, it brought up a soothing turn of thought Which restrained her from committing the act ;• she said as she looked at the little brook that ran over the ground, and as it undermined the shrubbery and trées on. the banks, and yet rolled' on pleasantly, that it reminded her of- the ácts of Elmer Warner, who would' like to drown out. her life as the brook would.” The plaintiff in rebuttal'testified’: “ T,he brook was not mentioned.” This examination took place on July -13, 1904. Defendants’ Exhibit D, written by the. plaintiff, is as follows: “ July 13, 1904. I got another interpretation of the Brook yesterday when I went to it for solace and rest. I fear it will never soothe me again as' it has done. I found myself saying to it, ‘ Y'ou are insensate^ follow- . ing your own bent, your own idle pleasure, your own aims regardless of what good or ill you do. You have no feeling for the .arched beauty of rock and forest that bends protcctingly above you. You would-undermine it and find your way through its ruins or about them and laugh on as unconcernedly as ever. You would; drown out the wonderful life of a human being in any of your pools as willingly as you would' á rat, and ■ then. ripple on, whispering with your fairy voices ás if yon had sweet secréts. to tell. You are the highest of all types of smiling, wooing ruthlessness. Tour name is Ellsworth Warner.’ Dear Auntie: This is sent you though not written for you on the eve of my departure in a close carriage, for parts unknown. Tours affectionately, Kellie.”

There is ground for surmise that the jury found negligence from the premise that the plaintiff was sane at the time tlie defendants certified that she was insane, for the minutes show that they “returned their verdict in which they find that Mrs. Warner was, on the 13th day of July, sane and rational, and find doctors guilty of negligence and fix the damages at $25,000.” The finding of sanity was no more a part of their formal verdict than would be a finding in a verdict for the plaintiff in a. negligence case that the plaintiff was not chargeable .with contributory negligence.

I advise that the judgment and order be reversed and that a new trial be granted, costs "to abide the event. ,

' Burr, Thomas, Rich and Caer, JJ., concurred.

Judgment and order reversed and new trial- granted, costs to abide the event.  