16 N.Y.S. 536 | New York Court of Common Pleas | 1891
On this appeal we have no jurisdiction to review the evidence, except to ascertain if it be sufficient to sustain the verdict; that is, sufficient to authorize the inference of defendant’s liability. Plaintiff alleges that the bottle was thrown “carelessly and negligently;” but it is a question whether negligence be an essential element in the cause of action. The cause of the injury, i. e., throwing the bottle, was the voluntary act of the defendant. “Looking into all the cases from the Year Book in 21 Henry VH., I find the principle to be that if the injury be done by the act of the party himself at the time, though it happened accidentally or by misfortune, yet he is answerable.” Grose, J'., in Leame v. Bray, 3 East, 599. “Though a man do a lawful thing, yet if damage do thereby befall another he shall answer it, if he could have avoided it.” Lambert v. Bessey, T. Raym. 423; Weaver v. Ward, Hob. 134; Underwood v. Hewson, 1 Strange, 596. And this ancient principle of liability appears to be still the law of Hew York. “Where the injury is not the effect of an unavoidable accident, the person by whom it is inflicted is liable to respond in damages.” Marcy, J., in Bullock v. Babcock, 3 Wend. 391. In an action against the colonel of the seventh regiment for an accidental wound to a spectator by a shot from a gun supposed to be unloaded, the plaintiff had a verdict; and, on appeal from the judgment, Denio, O. J., said; “I am of opinion that the judge might properly have instructed the jury that the evidence that the defendant had commanded the firing, and that one of the men fired a gun charged with a ball, by the discharge of which the plaintiff was wounded, was sufficient to sustain the action, whatever precaution the defendant and his subordinate officers had taken to provide against the accident. ” Castle v. Duryee, 41* N. Y. 169, 174. The law is propounded otherwise in Massachusetts, (Brown v. Kendall, 6 Cush. 292;) in Connecticut, (Morris v. Platt, 32 Conn. 75;) and by the federal supreme court, (Nitro-Glycerine Case, 15 Wall. 524.)
Assuming, then, the rule of liability as enunciated by these courts, namely, that an injury resulting from mere accident is not an actionable wrong, and that “the measure of care against an accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution w'ould use if his own interests were to be affected, and the whole risk were his own,” (Field, J., 15 Wall. 524,) we are still of opinion that the evidence was ample to justify the inference of negligence against the defendant. The mode in which the defendant discharged the contents of its drip-
Supposing the proof sufficient to sustain the inference of negligence, still defendant impeaches the judgment for errors upon offers of evidence. To aggravate the amount of her recovery, the plaintiff testified minutely and circumstantially to the effects of the blow upon her physical condition, and disclosed to the jury, without reservation, all the ill consequences of the injury to her health and comfort. Thereupon the defendant called the physician who had attended the plaintiff, and propounded to him this inquiry: “What did you discover as being wrong with her head on the 16th of July, 1889?” Plaintiff objected to the question, and the court excluded it, to which ruling the defendant duly excepted. The only conceivable ground for the rejection of the evidence is its assumed incompetency under section 834 of the Code of Civil Procedure, which forbids a physician or surgeon from disclosing “any information which he acquired in attending a patient.” But section 836 provides that upon an express waiver by the patient the evidence becomes admissible; and the question is, does the record before us exhibit such waiver by the plaintiff? Although the statute prescribes an express waiver, the court of appeals has decided that it may be inferred from conduct; and that, by making an attorney witness to his will, a testator precluded his representative from objecting to the disclosure by the attorney of professional communications. In re Will of Coleman, 111 N. Y. 220, 19 N. E. Rep. 71. So, if a party, in his own behalf, testify to a confidential interview with his physician, his adversary may call the physician to contradict the story of the patient. Marx v. Railroad Co., (Sup.) 10 N. Y. Supp. 159. In the latter case, so far from a disclaimer of his privilege, the patient strenuously asserted it on the trial; but, contrary to his express protest, the court raised a presumption of waiver.
The thing forbidden by the Code is the disclosure of professional information, and the policy of the enactment is to protect patients in the free revelation of their maladies to the physician. But what if, in order to enforce a claim against a stranger, the patient himself promulgates the information, and uncovers his maladies and infirmities in court, does he not thereby break the seal of secrecy, and absolve the physician from the obligation of silence? Does he not, in the strictest and most emphatic sense, waive his privilege ? Is it to be tolerated that, to mulct another in damages, he may inflame a jury with a false or exaggerated story of his injuries and suffering, and yet the physician whom he has consulted is not to be allowed to prevent the meditated injustice by a truthful statement of the case? It is to be borne in mind, too, that here the physician was not called to reveal the ailments of the patient, but to prove that she suffered from no such injuries as she represented. Obviously respondent’s contention is as inconsistent with the object and policy of the statute as it is fatal to the interests of justice. In McKinney v. Railroad Co., 104 N. Y. 352, 10 N. E. Rep. 544, the court of appeals held that, when the condition of the patient is once disclosed with his consent, “it is then open to the consideration of the entire public, and the privilege of for