Clifford v. Denver & R.G.R. Co.

• Citation: 188 N.Y. 349,80 N.E. 1094
• Court: New York Court of Appeals
• Decision Date: 30 April 1907
• Parties: CLIFFORD v. DENVER & R. G. R. CO.

188 N.Y. 349

80 N.E. 1094

CLIFFORD

v.DENVER & R. G. R. CO.

Court of Appeals of New York.

April 30, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Adelaide Clifford against the Denver & Rio Grande Railroad Company. From a judgment of the Appellate Division of the Supreme Court (97 N. Y. Supp. 707) affirming a judgment for plaintiff, defendant appeals. Reversed and remanded.

Upon the trial of this action evidence was given tending to show that the plaintiff, while a passenger on a train of the defendant at Alamosa, Colo., met with an accident caused wholly by its negligence. Whether she was injured internally was sharply contested. During the two nights immediately following the accident she assisted in the performance of a theatrical company, of which she was a member, acting a juvenile part, which required her ‘to dance quite a good deal.’ At the close of the performance on the second night, according to her testimony, she fell upon the stage, and after that could work no more for many months. The jury found a substantial verdict in her favor, and the judgment entered thereon was affirmed by the Appellate Division, two of the justices dissenting. The defendant appealed to this court.

Rush Taggart, for appellant.

Isaac N. Jacobson, for respondent.

VANN, J.

Five days after the plaintiff was injured she went to St. Mary's Hospital in Grande Junction, Colo., where she was treated by Dr. Hanson, a physician and surgeon. After issue was joined she caused a commission to be issued for the examination of the doctor as a witness in her behalf. Interrogatories prepared by her counsel and cross-interrogatories prepared by the counsel for the defendant were annexed to the commission, which was duly executed and returned. The plaintiff rested without reading any part of the testimony thus taken, but, when the case was with the defendant, its counsel offered the deposition in evidence, and was permitted to read the answers to the first four direct interrogatories, which showed that the witness was a physician and surgeon, and that he attended the plaintiff for four or five days while she was in the hospital. The answers to the rest of the direct interrogatories and to the most of the cross-interrogatories were objected to by the plaintiff and excluded as incompetent, because the witness divulged ‘facts which he acquired in his professional capacity as physician to the plaintiff.’ The direct interrogatories called upon Dr. Hanson to state whether he examined the plaintiff and what the examination disclosed; whether she was suffering from injuries, and, if so to describe them; whether she complained of pain, and, if so, of what kind; if she was suffering from shock, to describe the same fully and in detail; whether from the information thus acquired he could state with reasonable certainty that the injuries were of a permanent nature, etc. The cross-interrogatories objected to called on the witness to state whether the plaintiff complained of any pain other than that caused by pleurisy; if there was any trouble except pleurisy, to state its nature; if she was suffering from inflamed ovaries, whether such a condition could result from an external blow or shock so slight as to leave no external sign of injury, etc. Each question of both series was read by itself, and each ruling excluding the answer upon the ground stated was separately excepted to.

The Revised Statutes formerly provided and the Code of Civil Procedure now provides that a physician ‘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.’ 3 Rev. St. (6th Ed.) p. 671, pt. 3, c. 7, tit. 3, § 119; Code Civ. Proc. § 834. The Revised Statutes, however, did not provide whether or when or how the patient could waive his right to object to the disclosure. The first provision that we find relating to that subject appeared in the Code of Civil Procedure, as first enacted, which provided that the prohibition should ‘apply to every examination of a person as a witness, unless' it was ‘expressly waived’ by the patient. Laws 1876, p. 1, c. 448; Laws 1877, p. 459, c. 416, § 836. In 1891 it was provided that the prohibition against disclosure should ‘apply to any examination of a person as a witness unless the provisions thereof are expressly waived on the trial or examination’ by the patient. A physician was further authorized to disclose certain information, somewhat limited in character, acquired in attending a patient since deceased, ‘when the provisions of section 834 have been expressly waived’ on the ‘trial or examination by the personal representatives of the deceased patient.’ Laws 1891, p. 736, c. 381. An amendment made in 1892 is not now important, but for convenience of examination we cite the Laws of 1892, p. 1042, c. 514. In 1893 the right to expressly waive the restriction was extended, when the patient was deceased, to ‘the surviving husband, widow or any heir at law or any of the next of kin.’ The following provisions were added: ‘But nothing herein contained shall be construed to disqualify an attorney in the probate of a will heretofore executed or offered for probate or hereafter to be executed or offered for probate from becoming a witness, as to its preparation and execution in case such attorney is one of the subscribing witnesses thereto. In an action for the recovery of damages for a personal injury the testimony of a physician or surgeon attached to any hospital, dispensary or other charitable institution as to information which he acquired in attending a patient in a professional capacity, at such hospital, dispensary, or other charitable institution shall be taken before a referee appointed by a judge of the court in which such action is pending; provided, however, that any judge of such court at any time in his discretion may, notwithstanding such deposition, order that a subpoena issue for the attendance and examination of such physician or surgeon upon the trial of the action.’ Laws 1893, p. 580, c. 295, amending Code Civ. Proc. § 836. In 1899 the section was left unchanged, except that the following addition was made thereto: ‘The waivers herein provided for must be made in open court, on the trial of the action, or proceeding, and a paper executed by a party prior to the trial, providing for such waiver shall be insufficient as such a waiver. But the attorneys for the respective parties, may, prior to the trial, stipulate for such waiver, and the same shall be sufficient therefor.’ Laws 1899, p. 69, c. 53. In 1904 sections 834 and 836 were so amended as to extend the provisions thereof to professional or registered nurses, but no other change was made. Laws 1904, p. 874, c. 331. Thus legislation, starting with no regulation upon the subject of waiver, in 1877 allowed an express waiver, in 1891 an express waiver ‘upon the trial or examination,’ and since 1899 an express waiver ‘upon the trial or examination’ when made in open court, with no right to waive, by a paper executed prior to the trial, except by the stipulation of the attorneys for the respective parties. The prohibition applies ‘to any examination of a person as a witness,’ unless it is waived as thus provided.

It must be conceded that the language of the statute now in force, when read by itself, is broad enough to justify the rulings of the trial court. However, in order to learn the meaning of a statute which has been frequently amended, it is not not always enough to read the statute alone without searching for the reasons which led to the various amendments. When a law works well and satisfies the judgment of the bar and the public, there is no occasion for change; but, when something has been overlooked and the defect is discovered by the practical test of litigation, the Legislature is apt to respond. Changes in legislation upon a subject, therefore, should be studied in connection with the decisions of the courts relating thereto, so as to see whether the action of the courts led to the action of the Legislature, and thus to interpret the command of the statute in the light of the evil it sought to remedy. Even under the Revised Statutes, it was held that, although the rule was peremptory, still as it was made for the benefit of the patient he could waive it and allow the physician to testify. Cahen v. Continental Life Ins. Co., 9 Jones & S. 296, 304. During the long period when an express waiver was allowed, but no method was prescribed, the courts upheld any method by which the patient clearly expressed an intention to waive his right to object. Acts under some circumstances, silence under others, declarations both verbal and written, upon the trial and in advance of it, were held sufficient. We cite a few of the earlier cases to illustrate the subject before we come to those decisions, which, as we think, induced the Legislature to make the changes relied upon by the respondent to sustain the rulings in question. Matter of Coleman, 111 N. Y. 220, 227,19 N. E. 71;Hoyt v. Hoyt, 112 N. Y. 493, 20 N. E. 402;Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y. 77, 85,23 N. E. 35,6 L. R. A. 765;Masterson v. Boyce, 6 N. Y. Supp. 65, 69, 53 Hun, 630;Marx v. Manhattan Ry. Co., 10 N. Y. Supp. 159, 56 Hun, 575; Matter of Freeman, 46 Hun, 458, 463.

In the course of time certain corporations insisted upon written waivers in contracts of life insurance made long in advance, as it was expected, of the death of the insured. Thus in a case decided in 1894 the application, which was made a part of the contract, contained the following stipulation: ‘And for myself and for any person accepting or acquiring any interest in any benefit certificate issued on this application, I hereby expressly waive any and all provisions of law now existing, or that may hereafter exist, preventing any physician from disclosing any...