187 Pa. 166 | Pa. | 1898
Opinion by
The Act of June 18, 1895, P. L. 195, is in the following words, viz : “ That no person authorized to practice physics or surgery shall be allowed, in any civil case, to disclose any information which is acquired in attending a 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 his consent.” It will be seen at once that the act establishes a personal incapacity only. It is the physician, attending a patient, who is prohibited from testifying to information acquired while rendering professional service. He is prohibited by the words, “ no person authorized ” etc., shall be allowed to disclose any information, etc. No other person who being present at the time when the information was communicated, and heard the same, would be prevented by this act from testifying to the very matter in question. It is only the physician himself who is prohibited, and that is manifestly on account of the professional relation between himself and his patient.
In the present case the witness was examined and his deposition taken at a time anterior to the passage of the act of 1895, and at that time he was perfectly competent to testify to the matter in question. Subsequently, and before the trial in court, the witness, Dr. Crawford, died, and in 1895, also before the trial, the act above quoted was passed. On the trial the deposition of Dr. Crawford was offered in evidence and was objected to and rejected, because of the incompetency at that time of the
This same question again recurred in Hay’s Appeal, 91 Pa. 265, presenting in its own circumstances the same principle, which was again sustained. The plaintiff in an equity proceeding was examined as a witness in his own behalf, and an opportunity to cross-examine was afforded to the defendant, but was not availed of. Later the plaintiff died, and then a motion was made to strike out the testimony of the plaintiff that had been taken, but the motion was denied on the ground that the testimony was competent when it was taken, and we sustained the ruling. The present chief justice delivering the opinion said: “ When the plaintiff testified, he was undoubtedly a competent witness, and nothing that occurred thereafter would have justified the court or master in excluding his testimony. Under the circumstances we think it was rightly retained and considered with other testimony in the cause.” What occurred thereafter in that cause was, the incompetency of the witness
All of the foregoing cases were reaffirmed and again applied in Galbraith v. Zimmerman, 100 Pa. 374. The disqualification in that case was the interest of the witness. He was not a party, but he was interested in the result o£ the case. This however did not disqualify him, because when he was first examined both the parties were alive. But, afterwards, one of them, Zimmerman, died pending an action of ejectment between the plaintiff, Galbraith, and Zimmerman. On the trial of this action, after the death of Zimmerman, the witness, O’Connell, was offered to testify but was rejected because, on his voir dire, he admitted he was interested. The plaintiff then offered in evidence a deposition of O’Connell taken in a previous equity suit between the same parties in relation to the same land, being a bill for specific performance. This deposition was rejected for some unexplained reason, while the deposition of Galbraith, the plaintiff in the same case, was admitted. We held that the rejection of O’Connell’s deposition was error. We said : “We are very clear that there was error in 'the rejection of O’Connell’s deposition. At the time it was taken he was a competent witness, notwithstanding his interest, and under the well-settled rule in such cases, the testimony then taken could be given in evidence at the subsequent trial. The former controversy was practically between the same parties and in relation to the same subject-matter. In that proceeding O’Connell’s testimony was taken. The objection to his competency on account of his interest in the suit could not have prevailed if it had been then made. At the time of the trial of the present action, Zimmerman being dead, and the witness interested against him, the objection on the ground of interest necessarily prevailed, and he was properly excluded. But when his testimony, taken when he was competent, in a proceeding relative to the same subject-matter, and practically between the same parties was offered, there was no legitimate reason for its exclusion.” Here, again, was the case of a living witness, present
We see no further occasion for discussion. The cause of the subsequently accruing incompetency is not material. It may arise from absence, from sickness, from interest, from death or from a newly created statutory incompetency, but the principle controlling them all is that if at the time the deposition or testimony was taken, the witness was competent, it may be given in evidence after the incompeteney has arisen. Such is the sense of all the modem decisions, and we think the conclusion is reasonable and just. It is almost needless to add that the Act of May 23, 1887, P. L. 158, sec. 9, is in the same line with the cases-cited, and indicates a settled policy applicable to this class of cases. The assignments of error are all sustained.
Judgment reversed and a new venire awarded.