Wiel v. Cowles — 12 N.Y. St. Rep. 427

Majority

p. 427

Christian Wiel, Resp’t v. Charles Cowles, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed July, 1887).

Headnote

Evidence—Privileged communication—Code Civ. Pro., § 834—Physi-cians.

It is provided by Code Civil Procedure, section 834, that a person duly authorized to practice physic or surgery shall not be required to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. Held, that the statute did not apply to any except such as were duly authorized to practice physic or surgery, and that such information gathered by others was not within the privilege.

The action was brought to recover damages for injuries sustained by the plaintiff by reason of the negligent driving of the defendant. Judgment in favor of plaintiff was entered upon the verdict of a jury in the county court of Onondaga county, and from such judgment and from an order denying a motion for a new trial made upon the minutes of the justice, this appeal is taken.

T. E. Hancock, for resp’t; George D. Cowles, for app’lt.

Plaintiff gave evidence tending to show that he was injured on the evening of the 7th of March, 1885, on Lincoln avenue, in Syracuse, while passing along the avenue with his daughter, in the outskirts of the city, by the negligent driving of the defendant against or over him. He gave evidence of the extent and character of the injuries received and the condition thereof days after the happening of the same.

Defendant called as a witness one Earl W. Smith, who had visited the plaintiff after the injuries, on several occasions, and asked of him what he observed. That was objected to by the plaintiff as inadmissible under section 834 of the Code of Civil Procedure, The objection was sustained and defendant excepted.

Defendant then proved by the witness that he was not a

p. 428

licensed physician at the time he visited the plaintiff. Defendant asked the witness “what he found,’’ referring to the condition of plaintiff. Plaintiff objected and the court shut out the evidence and defendant excepted. We think the court committed an error. When the witness derived the “information” sought for by the questions he was not “duly authorized to practice physic or surgery.” The “ information ” was not privileged. The section ought not to be extended by construction. The ruling of the trial judge was erroneous. Code Civ. Pro., § 834; Renihan v. Dennin, 103 N. Y., 579 ; McKinney v. Grand Street, P. P. and F. R. Co., 9 Eastern Rep., 698; People v. Schuyler, 43 Hun, 88 . The words “ duly authorized to practice physic or surgery ” found in section 834 of the Code of Civil Procedure, were doubtless intended to apply to those persons not prohibited by section 356 of the Penal Code from practicing.

It is reasonable to construe the sections together. When Smith examined the plaintiff and held his interviews with him he was not “ duly authorized to practice.” The information was not such as section 834 says shall not be disclosed, because it was not possessed by “a person duly authorized to practice physic or surgery.”

Because the defendant was deprived of competent evidence by the rulings, we must reverse the judgment. It is not needful to pass upon several other questions discussed by the appellant at length, as they may not arise upon a second trial.

The judgment and order should be reversed and a new trial ordered in the county court of Onondaga county, with costs to abide the event.

The burden of showing that the witness was within section 834 and incompetent to testify, was upon the objector, the plaintiff.

The witness testified: I reside at 69 Warren street, Syracuse, N. Y., my occupation is medicine and surgery; I am a physician. * - *

Q. Were you a licensed physician at that time ?

A. I was not.

Q. At any of the times or occasions that you called to see plaintiff had you been admitted to practice or licensed as a physician ?

A. No, sir; I made no charge; I did it out of charity.

The witness treated and prescribed for the plaintiff, as a physician, for about one week. The evidence does not show that the witness had, at any time received authority from any school or society to practice medicine or surgery at any place. It does not appear that he was registered pursuant to chapter 513, Laws 1880, as amended. There

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is no evidence that the witness was, or ever had been, “duly authorized,” in a professional or legal sense, to practice physic or surgery. The witness stated that he called on plaintiff while on his way to college. Whether he was connected with a medical college does not appear; and if he was, whether as a teacher or pupil, does not appear. Nor does it appear that he was a practicing physician at the time, nor that he ever had been. If persons, not authorized in a legal or professional sense to practice physic or surgery, are within section 834, the effect will be to extend the privileges to such nurses and persons as are willing to swear that they are physicians in fact, and were attending the patient as such. . Such was not the intention of the legislature.

A new trial must be granted.

Judgment and order reversed, and a new trial ordered in the county court of Onondaga county, with costs to abide the event.

Boardman, J., concurs.