Westover v. Aetna Life Ins. Co.

• Citation: 99 N.Y. 56,1 N.E. 104
• Parties: WESTOVER, EX'r, etc., v. AETNA LIFE INS. CO.
• Decision Date: 14 April 1885
• Court: New York Court of Appeals

99 N.Y. 56

1 N.E. 104

WESTOVER, EX'r, etc.,

v.AETNA LIFE INS. CO.

Court of Appeals of New York.

Filed April 14, 1885.

Rollin Tracy, for appellant.

S. E. Payne, for respondent.

EARL, J.

This action was commenced upon a life insurance policy issued to the plaintiff's testator. It was provided in the policy that it should be void if the insured should commit suicide or die by his own hand. He hanged himself, and upon that ground the action was mainly defended. The plaintiff gave evidence tending to show that the testator hanged himself while insane, and the question was submitted to the jury for their determination whether the hanging was the voluntary, conscious, willing act of the testator, or whether he was at the time so insane that he was either unconscious of the act which he performed, or was unable to understand what the physical consequences of it would be; and upon that question the jury found for the plaintiff.

In the course of the trial the plaintiff called a physician who had known the insured for a long time, and who attended him professionally a short time before his death. He testified that he visited him first in June, 1881; and he was asked this question: ‘State how you found him?’ The counsel for the defendant objected to the question on the ground that ‘the evidence was incompetent and privileged, under section 834 of the Code of Civil Procedure, viz., the witness being a practicing physician, and the evidence being a disclosure of information acquired by him in attending Gove in a professional capacity, and necessary to enable him to act in that capacity, and the witness should not be allowed to testifyand disclose the information so acquired.’ The court overruled the objection, and the witness answered at length, giving important evidence as to the mental and physical condition at that time and subsequently of the insured. The claim of the learned counsel for the respondent, on the argument before us, was that the plaintiff, as the personal representative of the deceased, could waive the seal which the statute puts upon such evidence, and upon that ground the ruling of the trial judge was sustained by the general term.

Section 833 of the Code provides that ‘a clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of the religious body to which he belongs.’ Section 834 provides that ‘a person duly authorized to practice physic or surgery, shall not be allowed 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.’ Section 835 provides that ‘an attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment;’ and section 836 provides that ‘the last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient, or client.’

It is thus seen that clergymen, physicians, and attorneys are not only absolutely prohibited from making the disclosures mentioned, but that by an entirely new section it is provided that the seal of the law placed upon such disclosures can be removed only by the express waiver of the persons mentioned. Thus there does not seem to be left any room for construction. The sections are absolute and unqualified. These provisions of law are founded upon public policy, and in all cases where they apply, the seal of the law must forever remain until it is removed by the person confessing, or the patient, or the client. Edington v. Mutual Life Ins. Co. 67 N. Y, 185;Edington v. AEtna Life Ins. Co. 77 N. Y. 564;Pierson v. People, 79 N. Y. 424;Grattan v. Metropolitan Life Ins. Co. 80 N. Y. 281.

In Greenl. Ev. § 243, speaking of communications made to an attorney, the learned author...