Hanford v. Hanford — 3 Edw. Ch. 468

Majority

p. 468

Hanford v. Hanford.

April 27, 1841.

Headnote

Divorce. Testimony of a physician.

A divorce for adultery will not be granted upon the testimony of a physician disclosing information which he has acquired in the course of his professional employment; such testimony being prohibited by statute. But the case may go back to a master for further proofs.

Case of divorce, in which the evidence of adultery mainly • rested on the testimony of a medical man, who had had the defendant under his hands as a patient.

The master erf-ed in taking the testimony of the physician. Such a witness should not have been allowed to make such a disclosure. It is expressly forbidden by the statute ; and where a physician undertakes to disclose matters which came to his knowledge while professionally employed, his deposition must be rejected. (Johnson v. Johnson, 4 Paige, 460.) Reject this testimony and there is no proof that the defendant has ever committed an act of adultery. The evidence, without that of the physician, is, that this woman has become a drunkard and exposed her-. self in the streets in a state of intoxication. That she was sometimes found near the doors of houses of ill fame. Being found in such places and under such circumstances is enough to creaté suspicion that she might have been easily led astray and taken into improper places of that description; but the husband cannot be permitted to infer adultery. When he found his wife addicted to intoxication, it appears he used no means to restrain her, but let her go her own way ; and a woman who attended to his domestic affairs said that when the wife was in liquor her husband took no pains to regulate her conduct and acted as if he was willing to let her proceed and

p. 469

commit excesses of any sort for the purpose of getting rid of her by means of a divorce. If, however, he can prove, as he alleges, that she was in the habit of committing adultery, without his connivance or procurement, I suppose he is entitled to a decree. But, as the case now stands, the evidence doesnot warrant it. The case may go back to the master for further proofs.