| N.Y. Sup. Ct. | Jul 6, 1889
On the night of the 18th of June, 1888, the defendant called upon Dr. Crounse, a person duly authorized to practice physic and surgery, and employed him to attend Mary A. Brower, who was at the residence of her parents in Grant’s hollow, Bensselaer county, about three-fourths of a mile from Dr. Orounse’s office. The defendant was urgent. The doctor testified that upon coming into his office the defendant said: “For God’s sake, hurry up; my wife has a fit, or fainted, or something. I don’t know what.” “He said: ‘ Probably you would like to know what the difficulty is before you leave the office.’ I said, ‘Tes; it might be a help to me, because I might need something that I wouldn’t take with me.’ He said, ‘This lady down to the house I am living with I am not married to, but I expect to get a divorce from my other wife, and get married. This lady is about three months gone in the family way, and she introduced a catheter with a wire in her womb, and after she had introduced it far enough to hurt her, I blew in it.’ I said, * What did you blow in it for? ’ He said, * 1 done it before, and it worked all right.’ ” Dr. Crounse testified that upon the defendant’s statement he considered the case an emergency; that this was important. He had previously prescribed as a physician for the defendant, and for one of the children of Mrs. Brower; that on the present occasion he went immediately with the defendant to the house where Mrs. Brower was. He found her lying upon a bed, unconscious, and, as we judge from his testimony, in a dying condition, and she died in about half an hour. Two physicians, who made an autopsy, testified that in their opinion the woman died from the shock caused by the injection of air into the uterus. Aside from the testimony of Dr. Crounse there was no evidence tending to connect the defendant with any operation to procure a miscarriage. The testimony of Dr. Crounse respecting the statement made to him by the defendant was duly objected to by his counsel, under section 834 of the Code of Civil Procedure. The objection was overruled by the court, obviously in deference to the case of Pierson v. People, 79 N. Y. 427.
Section 834, Code Civil Proc., made applicable to criminal trials by section 392, Code Grim. Proc. Section 834 forbids the physician “to disclose any information which he acquires in attending a patient in a professional-capacity, and which was necessary to enable him to act in that capacity." In civil cases the rule has been rigidly applied. The Pierson Case was one of poisoning. The attending physician was permitted to testify to the symptoms and condition of the patient, as he found them from an examination openly made in the presence of the patient’s wife and the prisoner, and as he also learned them from the patient, bis wife, and the prisoner. This testimony was admitted, as we understand the ruling, because, although the facts presented brought the testimony within the letter of the act, they did not bring it within the spirit. The court remarked, respecting the information acquired by the physician in attending his patient: “There was nothing of a confidential nature in anything he learned or that was disclosed to him. The symptoms and condition were such as might be expected to be present in a case of arsenical poisoning.” Stress also was laid upon the fact that in no way was the confidence, feelings, or character of the patient affected by the disclosure.
The present case is widely different. The defendant employed the physician to try to save Mrs. Brower’s life. His alarm and anxiety were great. He knew what had taken place, and suspected that it was the cause of her