145 A. 437 | Pa. | 1928
Argued December 5, 1928. On the hearing of a petition for an issue devisavit vel non, contestants produced three of decedent's attending physicians. They said she was suffering from paresis, and was not competent to make a will. On cross-examination they testified that, in their opinion, paresis can result only from syphilis; but did not say whether or not, in her case, it was inherited, or arose because of her personal actions, and if so, whether they were proper or improper. Assuming that the disclosure of the fact stated would tend to blacken her character, the trial judge ultimately excluded their testimony from consideration, his reason for so doing being the Act of June 7, 1907, P. L. 462. Logically, he also excluded the opinion evidence of other doctors, whose conclusions, in whole or in part, were based on that of the attending physicians. From his refusal of the issue prayed for, this appeal was taken. The exclusion of the evidence referred to was error.
The title and enacting section of the statute are: "An act to prevent physicians and surgeons from testifying, in civil cases, to communications made to them by their patients, except in civil cases brought by their patients for damages on account of personal injuries.
"Section 1. Be it enacted, etc., That no person authorized to practice physics or surgery shall be allowed, in any civil case, to disclose any information which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without the consent of said patient, except in civil cases, brought by such patient, for damages on account of personal injuries." A number of reasons were alleged why this act could not properly be applied in the present case, but we will refer to one of them only.
It will be noticed that the language in the body of the statute is broader than that used in the title. The act refers to "information which he [the physician] acquired *353 in attending the patient in a professional capacity"; this would include information obtained by examining the patient. Hence, in Reid v. Reid, 50 Pa. C. C. 601, 604, a court of common pleas decided that "information includes not only statements, but also knowledge arising from observation and examination of the patient," and held a doctor incompetent to testify as to such knowledge, because his evidence tended to blacken the character of his patient. The title of the act is limited, however, to "communications made to them [the physicians or surgeons] by their patients." That which results from an examination only cannot be communications made to the doctor by the patient.
In Strain v. Kern,
Black's Law Dictionary (2d ed.) defines a communication to be: "Information given; the sharing of knowledge by one with another; conference; consultation or bargaining preparatory to making a contract." The *354 Century Dictionary declares it to be the "Interchange of thoughts, opinions or information by speech or writing." Webster's New International Dictionary says it means: "Intercourse by words, letters or messages; interchange of thoughts or opinions, by conference or other means; converse; correspondence." And the new Oxford Dictionary says it is "The imparting, conveying or exchange of ideas, knowledge, information, etc., (whether by speech, writing or signs)." It will be no ticed that all of these definitions exclude the idea that "communications" include the results of a physical examination by a doctor. Beyond them, therefore, there can be no clear expression of such a meaning.
An extended examination of the authorities, here and elsewhere, shows that, aside from Reid v. Reid, supra, all but three of them antagonize appellee's contention on this point, and those three are inapplicable to our Constitution and statute. In Com. v. Sapp,
In Skruch v. Metropolitan Life Ins. Co.,
It is clear, therefore, that, in the present case, the court below erred in excluding from consideration the *356
testimony of the physicians referred to in the first paragraph of this opinion. In his argument at bar, appellees' counsel vigorously urged us not to reverse the order refusing the issue, though we reached this conclusion, but to review all the evidence, and if, upon consideration thereof, we should find, as he believed we would, that even with the testimony of the physicians included the issue could not properly have been awarded, to treat the error as harmless and affirm the order. In proper cases we take that course, but this is not one of them. We have here the testimony of 24 witnesses, covering 667 pages of the record. The trial judge saw all of these witnesses, and hence is far better able to determine what weight should be given to their testimony than we can possibly be: Mirkil v. Morgan,
It must not be supposed, because of our reversing the order of the court below, that we have reached a conclusion adverse to that expressed by the trial judge, after he had erroneously excluded the testimony of appellant's physicians. We have been careful to avoid having an opinion, or even a leaning, one way or the other, on that question, and have studiously limited our reading of the evidence and of the opinion below, to so much thereof as relates to such erroneous exclusion. Beyond this we are not willing to go until we have had the benefit of the judgment of the court below on the whole of the evidence.
The order of the court below is reversed and the record is remitted with a procedendo.
Mr. Justice FRAZER dissented. *357