City & County of San Francisco v. Superior Court

James Hession brought an action for personal injuries against the City and County of San Francis'’'" and the Western Pacific Railroad Company. He alleged tha he suffered brain concussion, nerve root damage, and nervous shock. At the request of Hession’s attorneys, Dr. Joseph Catton, a physician specializing in nervous and mental diseases, twice gave Hession-a neurological and psychiatric ex-

Even if there had been a physician-patient relationship, the privilege would be waived under section 1881(4) by Hession’s bringing the action for personal injuries. (Phillips v. Powell, 210 Cal. 39 , 42 [ 290 P. 441 ]; Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357 , 360 [ 170 P.2d 465 ]; see also Moreno v. New Guadalupe Mining Co., 35 Cal.App. 744 , 754-755 [ 170 P. 1088 ].)

Relying on Webb v. Francis J. Lewald Coal Co., 214 Cal. 182 [ 4 P.2d 532 ], respondent and Hession, the real party in interest, contend that since the privilege set forth in section 1881(4) is phrased in the language “prescribe or act for the patient” and the personal-injury-litigant exception is phrased in the language “prescribed for or treated said person ’ ’ the exception to the privilege in the case of personal-injury litigants is not so broad as the privilege. (Italics added.) They conclude that the privilege exists here because Dr. Cat-ton “acted” for Hession when he examined him and delivered to his counsel a written report of his findings, but that the exception cannot apply because Dr.

Catton did not prescribe for or treat Hession. The Webb ease clearly supports this conclusion, but a reexamination of that case compels the conclusion that this ground of the decision must be disapproved.

The whole purpose of the privilege is to preclude the humiliation of the patient that might follow disclosure of his ailments. When the patient himself discloses those ailments by bringing an action in which they are in issue, there is no longer any reason for the privilege. The patient-litigant exception precludes one who has placed in issue his physical condition from invoking the privilege on the ground that disclosure of his condition would cause him humiliation. He cannot have his cake and eat it too.

The view taken in the Webb case defeats the purpose of the statute by seizing upon the phrase “act for the patient” and giving it a meaning that cannot reasonably be attributed to the Legislature. The statute reads: “A licensed physician or surgeon can not, without the consent of his patient, be examined in a civil action, as to any information acquired in attending the patient, which was necessary to

Even if there is a physician-patient relationship, it is settled that the privilege given by the statute is that of the patient, not that of the physician, and that if the patient does not claim the privilege, it is waived. (Hirschberg v. Southern Pac. Co., 180 Cal. 774 , 777 [ 183 P. 141 ]; Lissak v. Crocker Estate Co., 119 Cal. 442 , 445 [ 51 P. 688 ]; Wheelock v. Godfrey, 100 Cal. 578 , 587 [ 35 P. 317 ]; San Francisco Credit Clearing-House v. MacDonald, 18 Cal.App. 212 , 219 [ 122 P. 964 ]; see 20 Cal.L.Rev. 302 , 311; 8 Wigmore, supra, § 2386, p. 828.) The view taken in the Webb case, however, would enable the physician to defeat the purpose of the statute by claiming the privilege even though the patient does not. The plaintiff in that ease, the only one who could assert the privilege, did not do so; it was the physician who asserted it. “Respondent’s counsel, however, remained silent and expressly stated to the court that they would take no part in this phase of the proceeding.” (Webb v. Francis J. Lewald Coal Co., supra, at p. 185.)

The Contention That Dr. Catton Need Not Testify If He Is Not Paid More Than The Ordinary Witness Fee

Doctor Catton asserted a privilege personal to himself, a privilege not to testify to knowledge and opinions that were the result of his special learning without payment of

The Attorney-Client Privilege

Although Dr. Catton can invoke no privilege of his own and there was no physician-patient privilege in this case, we have concluded that Dr. Catton was an intermediate agent for communication between Hession and his attorneys and that Hession may therefore invoke the attorney-client privilege under section 1881, subdivision (2), of the Code of Civil Procedure. That subdivision reads: “An attorney, can not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of his employer, concerning any fact the knowledge of which has been acquired in such capacity.’’ (See, also, Bus. & Prof. Code, § 6068(e).) This privilege is strictly construed, since it suppresses relevant facts that may be necessary for a just decision. (Satterlee v. Bliss, 36 Cal. 489 , 508; Samish v. Superior Court, 28 Cal.App.2d 685 , 695 [ 83 P.2d 305 ]; see 27 Cal.Jur. 44, 51; 58 Am.Jur., Witnesses, § 464, p. 261.) It' cannot be in-

The privilege is- given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence. Adequate legal representation in the ascertainment and enforcement of rights or the prosecution or defense of litigation compels a full disclosure of the facts by the client to his attorney. “Unless he makes known to the lawyer all the facts, the advice which follows will be useless, if not misleading; the lawsuit will be conducted along improper lines, the trial -will be full of surprises, much useless litigation may result. Thirdly, unless the client knows that his lawyer cannot be compelled to reveal what is told him, the client will suppress what he thinks to be unfavorable facts.” (Morgan, Foreword, Am. Law Inst. Code of Evidence, p. 25-26.) Given the privilege, a client may make such a disclosure without fear that his attorney may be forced to reveal the information confided to him. “ [T]he absence of the privilege would convert the attorney habitually and inevitably into a mere informer for the benefit of the opponent.” (8 Wigmore, supra, § 2380a, p. 813.)

The privilege embraces not only oral or written statements but actions, signs, or other means of communicating information by a client to his attorney. (Ex Parte McDonough, 170 Cal. 230 , 234 [ 149 P. 566 , Ann.Cas. 1916E 327, L.R.A. 1916C 593]; see 58 Am.Jur., Witnesses, § 486, p. 272.) “(A)lmost any act, done by the client in the sight of the attorney and during the consultation, may conceivably be done by the client as the subject of a communication, and the

Petitioner contends that under the express terms of section 1881 (2) it is only the attorney and the attorney’s secretary, stenographer, or clerk who cannot be examined, and that since Dr. Catton was not engaged in any of these capacities he cannot withhold the information requested.

The statute specifically extends the client’s privilege to preclude examination of the attorney’s secretary, stenographer, or clerk regarding information of communications between attorney and client acquired in such capacities, to rule out the possibility of their coming within the general rule that the privilege does not preclude the examination of a third person who overhears or otherwise has knowledge of communications between a client and his attorney. (Sharon v. Sharon, 79 Cal. 633 , 677 [ 22 P. 26 , 131]; Ver Bryck v. Luby, 67 Cal.App.2d 842 , 844 [ 155 P.2d 706 ]; Mitchell v. Towne, 31 Cal.App.2d 259 , 265 [ 87 P.2d 908 ]; Cohn v. Cohn, 130 Cal.App. 349 , 355 [ 20 P.2d 61 ]; Carleton v. Bonham, 60 Cal.App. 725 , 726, 732-733 [ 214 P. 503 ]; see, 8 Wigmore, supra, § 2311, p. 600, § 2326, p. 629; 27 Cal.Jur. 53; 11 Cal.Jur. 10-Yr. Supp. (1950 Rev.) 685, note 3; 58 Am.Jur., Witnesses, § 492, p. 275, § 518, p. 291; 53 A.L.R. 369 et seq.) It does not follow, however, that intermediate agents of communication between attorney and client fall within that general rule. Had Hession himself described his condition to his attorneys there could be no doubt that the communication would be privileged and that neither the attorney nor Hession could be compelled to reveal it, even though a client is not listed in section 1881 (2) among those who cannot be examined. (Verdelli v. Gray’s Harbor etc. Co., 115 Cal. 517 [ 47 P. 364 ]; Birmingham R. & E. Co. v. Wildman, 119 Ala. 547 [ 24 So. 548 , 549-550]; State v. White, 19 Kan. 445 , 446-447 [ 27 Am.Rep. 137 ]; Hemenway v. Smith, 28 Vt. 701 , 707; see, 8 Wigmore, supra, § 2324, p. 628.) It is no less the client’s communication to the attorney when it is given by the client to an agent for transmission to the attorney, and it is immaterial whether the agent is the agent of the attorney, the client, or both. “(T)he

“This of course includes communications through an interpreter, and also communications through a messenger or any other agent of transmission, as well as communications originating with the client’s agent and made to the attorney. It follows, too, that the communications of the attorney’s agent to the attorney are within the privilege, because the attorney’s agent is also the client’s sub-agent and is acting as such for the client.” (8 Wigmore, supra, § 2317, pp. 616-617; New York Casualty Co. v. Superior Court, 30 Cal.App.2d 130 , 132-133 [ 85 P.2d 965 ]; Lewis v. United Air Limes Transport Corp., 32 F. Supp. 21 , 22; Schmitt v. Emery, 211 Minn. 547 [ 2 N.W.2d 413 , 416, 139 A.L.R. 1242 ]; In re Heile, 65 Ohio App. 45 [ 29 N.E.2d 175 , 176-177]; see 58 Am.Jur., Witnesses, § 472, pp. 264-265, §§ 497-498, pp. 279-280, § 502, pp. 281-281; 70 C.J., Witnesses, § 537, p. 401; cases collected in 139 A.L.R. 1256 -1260; 53 A.L.R. 369 , 373.) Thus, when communication by a client to his attorney regarding his physical or mental condition requires the assistance of a physician to interpret the client’s condition to the attorney, the client may submit to an examination by the physician without fear that the latter will be compelled to reveal the information disclosed. (Webb v. Francis J. Lewald Coal Co., 214 Cal. 182 , 186-187 [ 4 P.2d 532 ]; see 5 So.Cal.L.Rev. 446.) In Arnold v. City of Maryville, 110 Mo.App. 254 [ 85 S.W. 107 , 108], and Mc-Millen v. Industrial Comm. of Ohio (Ohio App.), 37 N.E.2d 632 , on which petitioner relies, it was held, as we hold in the present case, that there was no physician-patient privilege. In neither ease, however, was the attorney-client privilege invoked or considered.

t is contended that the purpose of the patient-litigant exception in subdivision 4 of section 1881 would be defeated if the attorney-client privilege in subdivision 2 can be invoked to prevent a physician from divulging the results of his examination of a person for the purpose of aiding his attorneys in the preparation of an action for personal injuries. The two subdivisions relate to two separate and distinct privileges. Since there was no physician-patient relation

The alternative writ of mandamus is discharged, and the petition for the peremptory writ is denied.

Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., Schauer, J., and Spence, J., concurred.

Petitioner’s application for a rehearing was denied June 14, 1951.