Pennsylvania R. Co. v. Durkee

• Citation: 147 F. 99
• Decision Date: 07 June 1906
• Docket Number: 273.
• Parties: PENNSYLVANIA R. CO. v. DURKEE.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

147 F. 99

PENNSYLVANIA R. CO. v. DURKEE.

No. 273.

United States Court of Appeals, Second Circuit.

June 7, 1906

On Rehearing, July 6, 1906.

Henry G. Ward, for plaintiff in error.

A. G Schuerman, for defendant in error.

This cause comes here upon writ of error to review a judgment entered upon a verdict in favor of defendant in error, who was plaintiff below. The action was to recover damages for personal injuries sustained in consequence of a collision between two trains; the plaintiff being at the time a passenger upon one of them.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

LACOMBE Circuit Judge.

There are only two assignments of error; one to a refusal to charge a request, the other to instructions given to the jury upon refusing to charge as requested. The request was:

'That the jury have a right to infer, from the refusal of the plaintiff to permit Dr. Peterson to testify as to what he treated (plaintiff) for and what he found her condition to be, that his testimony would be unfavorable to her.'

In refusing it the court said:

'I charge, on the other hand, that it is her privilege and her right, awarded to her by law, to object to her physician giving any evidence, and that you are not permitted to infer, because she exercised that right, that the physician would have given evidence in one way or the other, favorable or unfavorable. Simply, the law boldly and wholly shuts it out, except at her instigation; but that she was treated by Dr. Peterson appears according to his statement, and you have a right to consider that fact, and only that, as far as his evidence is concerned.'

The accident happened February 21, 1901, and it was alleged that as a result plaintiff received a severe concussion of the spine, severe injuries to the head and nerves of the head and nervous system, and to the nerves of the body and limbs, and a shriveling and wasting of the left arm and hand resulting therefrom. It is quite apparent that it might be desirable for the defendant to show, if it could, that she had suffered from some of these nervous injuries before the accident. Upon the trial a witness, Dr. Peterson, was called by the defendant. After qualifying as a specialist in nervous and mental diseases, he testified that the plaintiff was sent to consult him by another physician, and that he saw her professionally four times between October 31, 1895, and March 1, 1898. He was then asked 'for what trouble the plaintiff consulted him, and what he found to be her physical condition. ' This was objected to as 'incompetent, as a privileged communication, and against the statute. ' The objection was sustained.

The sections of the New York Code of Civil Procedure which regulate the subject are as follows:

'Sec. 834. 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 the age of sixteen, the information so acquired indicates that the patient has been the victim or subject of a crime, in which case the physician or nurse 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.'

Section 833 contains similar provisions as to clergymen, and section 835 as to attorneys and counselors.

'Sec. 836. The last three sections apply to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the party confessing, the patient or the client. * * * 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 waiver. But the attorneys for the respective parties, may prior to the trial, stipulate for such waiver, and the same shall be deemed sufficient therefor.'

In the brief of defendant in error it is asserted that the privilege accorded to the patient under section 834 may be waived by failure to object, and cannot be rendered effectual except by the interposition of an objection. No cases are cited in support of this proposition, and in the absence of any controlling decision we would be inclined to hold the converse. Section 834 in explicit and peremptory language forbids the physician from disclosing any information obtained in a professional capacity, and it is not apparent why such prohibition should not bind him, whether the defendant sits silent or raises an objection. Until the express waiver in open court, which section 836 provides for it is the duty of the witness to refuse to betray the confidence reposed in him as a professional man, and the trial judge would no doubt of his own motion prevent any disclosures which the statute forbids. Had it been the intention of the Legislature that the prohibition of the statute should be operative only when the patient took affirmative action to exclude the testimony by interposing an objection, presumably it would have used language appropriate to indicate such an intention. On...