147 F. 99 | 2d Cir. | 1906
Lead Opinion
There are only two assignments of error; one to a refusal to charge a request, the other to instructions given to the jury upon refusing to charge as requested. The request was:
“’Chat the jury have a right to infer, from the refusal of the plaintiff to permit Dr. Peterson to testify as to what he treated [plaintiff] for and what he found her condition to be, that bis testimony would be unfavorable to her.”
In refusing it the court said:
“I charge, on the other hand, that it is her privilege and her right, awarded to her by the law, to object to her physician giving any evidence, and*100 that you are not permitted to infer, because she exercised that right, that the physician would have given evidence in one way or the other, favorable or unfavorable. • Simply, the law boldly and wholly shuts it out, except at her instigation; but that she was treated by Dr. Peterson appears according to his statement, and you have a right to consider that fact, and only that, as far as his evidence is concerned.”
The accident happened February 21, 1901, and it was alleged that as a result plaintiff received a severe concussion of the spine, severe injuries to the head and nerves of the head and nervous system, and to the nerves of the body and limbs, and a shriveling and wasting of the left arm and hand resulting therefrom. It is quite apparent that it might be desirable "for the defendant to show, if it could, that she had suffered from some of these nervous injuries before the accident. Upon the trial a witness, Dr. Peterson, was called by the defendant. After qualifying as a specialist in nervous and mental diseases, he testified that the plaintiff was sent to consult him by -another physician, and that he saw her professionally four times between October 31, 1895, and March 1, 1898. He was then asked “for what trouble the plaintiff consulted him, and what he found to be her physical condition.” This was objected to as “incompetent, as a privileged communication, and against the statute.” The objection was sustained.
The'sections of the New York Code of Civil Procedure which regulate the subject are as follows:
“Sec. 834. A person duly authorized to practice physic or surgery, or a professional or registered niirse, 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; unless, where the patient is a child under the age of sixteen, the information so acquired indicates that the patient has been the victim or subject of a crime, in which case the physician or nurse may be required to testify fully in relation thereto upon any examination, trial or other proceeding in which the commission of such crime is a subject of inquiry.”
Section 833 contains similar provisions as to clergymen, and section 835 as to attorneys and counselors.
“Sec. 836. 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 party confessing, the patient or the client. * * * The waivers herein provided for must be' made in open court, on the trial of the action, or proceeding, and a paper executed by a party prior to the trial, providing -for such waiver shall be insufficient as such waiver. But the attorneys for the respective parties, may prior to the trial, stipulate for such waiver, and the same shall be deemed sufficient therefor.”
In the brief of defendant in error it is asserted that the privilege. accorded to the patient under section 834 may be waived by failure to object, and' cannot be rendered effectual except b)r the interposition of an objection. No cases are cited in support of this proposition, and in the absence of any controlling decision we would be inclined to hold the converse. Section 834 in explicit and peremptory language forbids the physician from disclosing any information obtained in a professional capacity, and it is not apparent why such prohibition should not bind him, whether the defendant sits silent or raises an objection. Until the express waiver in open court, which section 836 provides for, it is the d'uty of the witness to refuse to betray the confidence reposed
To hold that, because the patient does not waive or abandon the prohibition, inferences adverse to his side of the controversy may be drawn by the jury, would be to fritter away the protection it was intended to afford. When it is the legal right of a party not to have some specific piece of testimony marshaled against him, he may exercise that right without making it the subject of comment for the jury. The law of evidence provides that the copy of a document shall not be proved until the failure to produce the original shall be satisfactorily explained. When a copy is offered, the party against whom it is offered may, if he choose, waive this particular objection; hut, if he does not, are the jury to be allowed to draw unfavorable inferences from his insisting upon the cause being tried in the orderly way in which the law provides? In a case where communications between client and counsel were inquired about, Lord Chelmsford said:
"The exclusion of such evidence is for the general interest of the community, and therefore to say that, when a party refuses to permit professional confidence to be broken, everything must be taken most strongly against him, what is it but to deny him the protection which for public purposes the law affords him. and utterly to take away a privilege which can thus only be asserted to his prejudice?” Wentworth v. Lloyd, 10 House of Lords, 589.
To a similar effect arc Nat. Ger. Am. Bank v. Lawrence, 77 Minn. 282, 79 N. W. 1016, 80 N. W. 363; Lane v. Spokane Falls R. Co., 21 Wash. 119, 59 Pac. 367, 46 L. R. A. 153, 75 Am. St. Rep. 821; McConnell v. City of Osage, 80 Iowa, 293, 45 N. W. 550, 8 L. R. A. 778.
The Appellate Division of the Supreme Court of New York for the First Department has apparently reached a different conclusion in Deutschmann v. Third Ave. R. R., 87 App. Div. 503, 84 N. Y. Supp. 887. That case seems not to be in accord with the general consensus of judicial opinion, and, since the question is not one of interpretation of a state statute, but deals only with the' general law of evidence, there is no reason apparent why this court should follow it.
The judgment is affirmed.
Rehearing
Petition for Rehearing.
Authorities now cited which were not on the original briefs indicate that in the state courts the privileged testimony is- admitted unless objection is interposed. That circumstance, however, does not modify the conclusion expressed in our opinion disposing of the cause, namely, that the trial judge correctly instructed the jury because the rule as to drawing unfavorable inferences from failure to produce testimony is not to be applied where the law, on grounds of public policy, has established privileges against being compelled to produce it.
The petition for rehearing is denied.,