Homnyack v. Prudential Ins. Co. of America
| Decision Date | 02 March 1909 |
| Citation | 194 N.Y. 456,87 N.E. 769 |
| Parties | HOMNYACK v. PRUDENTIAL INS. CO. OF AMERICA. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Action by Andrew Homnyack against the Prudential Insurance Company of America. From a judgment of the Appellate Division (123 App. Div. 907,107 N. Y. Supp. 1130) affirming a judgment for plaintiff, defendant appeals. Affirmed.
Ralph Earl Prime, Jr., for appellant.
Charles F. Wheaton, for respondent.
This is an action upon a policy of life insurance. The appeal presents only one point which we deem it necessary to discuss. The defendant was not allowed to examine a professional nurse, who had been placed upon the stand as a witness for the defense, in regard to the ailment from which the insured person was suffering at the time when the witness attended as such nurse. The correctness of the ruling excluding this testimony involves a somewhat interesting question of statutory construction which may arise in other cases, and upon which an expression of our views may, therefore, be useful.
Freda L. Hartman, whose testimony as to the physical condition of the insured the defendant attempted to introduce, saw the patient in the month of April, 1903. At that time the witness was a professional nurse, but not a registered nurse. She was employed by the Women's Institute of Yonkers to do special visiting among tuberculosis patients, to whom she gave advice, and ‘nursed those patients that required nursing.’ She testified that she was not then a registered nurse, because at that time there was no law providing for the registration of nurses. In April, 1903, section 834 of the Code of Civil Procedure read as follows: ‘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.’ By chapter 331, p. 874, Laws 1904, this section was amended so as to read as follows: This was the first time that the privilege of physicians on the witness stand was extended to professional and registered nurses. The amendment took effect on September 1, 1904, so that professional and registered nurses enjoyed the same privilege as physicians under section 834 at the time of the trial of this action, which took place on January 17, 1907. By the first section of chapter 331, p. 606, Laws 1905, section 834 of the Code of Civil Procedure was still further amended so as to read as follows: ‘Physicians or professional registered nurses not to disclose professional information.-A person duly authorized to practice physic or surgery, or a professional or registered nurse, 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; unless, where the patient is a child under sixteen, the information so acquired indicates that the patient has been the victim or subject of a crime, in which case the physician or nurses may be required to testify fully in relation thereto upon any examination, trial or other proceeding in which the commission of such crime is a subject of inquiry.’ It will be observed that this amendment of 1905 left the pre-existing phraseology of section 834 unchanged as far as it went, and that the only effect of the amendment was to remove the privilege, and permit the disclosure of information acquired by physicians or nurses in treating their patients, where it should appear that the information so acquired indicated that the patient had been the victim or subject of a crime.
Section 2 of chapter 331 of the Laws of 1905, by the first section of which this amendment was added, reads as follows: ‘Nothing in this...
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