87 A.D. 503 | N.Y. App. Div. | 1903
The plaintiff claimed to have received injuries while attempting to board one of the defendant’s cars, and by this action seeks to recover damages for such injuries and the consequences resulting to herself therefrom. It is not necessary to discuss the evidence offered in the case, except so far as the same is required to make disposition of the errors claimed to have been committed by the court upon the trial. The evidence given upon the trial was conflicting ; that offered by the plaintiff tending to support the averments of her complaint and that offered by the defendant tending to contradict the same and to show that the plaintiff did not meet with any accident and that she received no injuries upon the occasion of which she made complaint. The evidence required a submission of the question of fact to the jury and the verdict in favor of the defendant has support in the" evidence and must be sustained, unless some error was committed which calls for a reversal of the judgment. It was shown upon the trial that the plaintiff was pregnant at the time the alleged accident was claimed to have happened and that shortly thereafter she sustained á miscarriage, which she now contends was produced by the injuries which she received, and that as a further consequence of such injuries she had
*507 ' “H. Kolb, M. D.,
“ 356 West 42d Street New York, May 1st, 1900.
“ This is to certify that Mrs. Anna Deutschmann has been sick with syphilis and under my treatment during the last threeyears; manifested by various syphylitic skin eruptions, glandular enlargements, sore mouth (syphylitic) and throat, also has had several miscarriages due to same cause.
“H. KOLB, M. D.”
Upon redirect examination the physician testified that the statement did not refer to the plaintiff; that he did not know to whom it referred; could not remember the circumstances of making it, but that he knew that the plaintiff had never had syphilis. This presents one of the asserted errors relied upon on this appeal. We think the certificate was properly received. There was evidence given in the course of the trial tending to identify the plaintiff as the same person who was treated for syphilis by other physicians and also by a druggist, who filled prescriptions for her and who identified her upon the trial, and by the testimony of expert witnesses that the prescriptions which she procured to be filled were specific medicines for that disease. The certificate was the act of Dr. Kolb. If he had given it to the plaintiff it would clearly be . admissible in • evidence as bearing upon the credibility of his statement that he attended and treated the plaintiff for injuries resulting from the accident, and not for any other sickness; that she did not have syphilis, and that the certificate did not refer to her, no possible question could then arise as to its admissibility. In view of the character of the evidence developed upon the trial we think the same rule must apply as though it were admitted that he gave it to her. She was identified by witnesses as a person suffering from that disease; the physical results flowing from it cpuld account for nearly all of the ailments described by Dr. Kolb. He gave important and, if believed, controlling testimony in favor of 'the plaintiff. The defendant, therefore, had the right to attack his credibility by any evidence proper for that purpose. When she was so closely connected with the physician and identified as the person who was receiving treatment for that complaint, it became a fair question to be submitted to the jury as bearing upon the force
' It is claimed,, however, that if the certificate was admissible, it Was extended beyond any just or reasonable rule which authorized its reception, and that being received as bearing upon the credibility of the testimony of the physician was, in fact, used as affirmative-evidence to establish that the plaintiff was suffering from the disease therein described. This view was claimed to be presented by a motion to strike from the record the certificate and for an instruction to the jury to disregard it altogether. The motion was denied,, and, in reply thereto, the court stated : “ I think I Avill leave it to-the jury to say whether Dr. Kolb did make that certificate or not. and whether it refers to anything connected with this case. Let the jury draw the inference from it under all the circumstances of tfie case.” There was nothing in this statement showing that the-court extended a consideration of the certificate by the jury to any enlarged or improper purpose beyond its bearing upon the credibility of the physician. On the contrary, it was left to the jury to-say whether the certificate applied to the plaintiff or not. That was. an issue presented by the testimony bearing thereon, and whether it referred to anything connected with the case the jury were to draw the-inference. There was no motion made to limit the proof as bearing
The plaintiff contends that she should have been permitted to show that the physician did not keep records of cash patients, and that men and women called to consult him and receive prescriptions of which he made no record, and that persons suffering from syphilis frequently gave fictitious names. The purpose of this testimony was to account for the giving of this certificate by the physician. It was negative testimony and entirely collateral to that issue. The question was whether he gave it to the plaintiff or not, and as to that fact he claimed to have absolute knowledge. What other patients did, or what other persons called upon him, or what records he kept, or the delicacy of patients, had no bearing upon the question. The testimony was, therefore, properly excluded.
The defendant called as a witness Edmund S. Parslow, who testified that he was a practicing physician; that he was acquainted with the plaintiff; that he had attended her professionally at his office and her house in the year 1898 about twice a week for two or three months. This testimony was objected to by the plaintiff upon the ground that it violated section 834 of the Code of Civil Procedure. The objections were overruled and the plaintiff excepted. Defendant then asked: “ Q. Doctor, will you state to the jury whether or not she was suffering from syphilis % ” This was objected to upon the same ground and the objection was sustained. Another" question
The defendant called as a witness John Werner, a druggist, who testified that he knew the plaintiff; that he had filled prescriptions for her; identified the prescriptions made by Dr. Parslow and stated that he had filled them for the plaintiff. The prescriptions were then offered in evidence and the plaintiff objected upon the ground that they constituted a confidential communication of the physician who gave them, and were, therefore, inadmissible in evidence, and such objection was also urged to the testimony given by the wit-mess. These objections were overruled, the evidence given by the
At the close of the charge the plaintiff requested the court to further charge that “ Under the law, communications from a patient to a physician are privileged and cannot be given in testimony, •except that the privilege be waived, and could have been waived in this case by the plaintiff, but her refusal to waive it does not war: rant the jury in indulging in any inferences unfavorable to her or to her cause of action. She stood upon her legal rights, and because •of doing so she cannot be prejudiced in the eyes of the jury. * * * The Court: I will charge you upon that subject in this way. The statute does for purposes of public policy, or such other as may have influenced the Legislature, say that a physician shall not be permitted to divulge information he obtained, and which was necessary to the treatment of the patient in his professional capacity. The law itself does not prohibit any inference being drawn from that, and I think that while you are not to raise any inference which is not justified under the evidence in the case, I shall decline to ■charge you that the law prevents you from drawing any inference whatsoever from the situation.” It is insisted that the refusal to •charge and the charge as made constituted error. We think the ■correct interpretation of the court’s charge upon this subject is that the statute in terms did not prohibit any inference being drawn from the failure to permit a physician to téstify. This was clearly a corréct statement. There is nothing in the statute bearing- upon .such subject. That being the fact, the court stated that the jury were not justified in drawing any inference not warranted by the
The judgment and order should, therefore,, be affirmed, with costs.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
judgment and order affirmed, with, costs.