Wells v. New England Mut. Life Ins. Co. of Boston, Mass.

• Citation: 40 A. 802,187 Pa. 166
• Decision Date: 21 July 1898
• Docket Number: 294
• Parties: George A. Wells, Administrator of Helene Roberts, deceased, now to use of John Welles Hollenback and L. D. Shoemaker, v. The New England Mutual Life Insurance Company of Boston, Massachusetts, Appellant
• Court: United States State Supreme Court of Pennsylvania

40 A. 802

187 Pa. 166

George A. Wells, Administrator of Helene Roberts, deceased, now to use of John Welles Hollenback and L. D. Shoemaker, v. The New England Mutual Life Insurance Company of Boston, Massachusetts, Appellant

No. 294

Supreme Court of Pennsylvania

July 21, 1898

Argued April 11, 1898

Appeal, No. 294, Jan. T., 1897, by defendant, from judgment of C.P. Luzerne Co., May T., 1893, No. 99, on verdict for plaintiff. Reversed.

Assumpsit on a policy of life insurance. Before GUNSTER, J.

At the trial defendant offered in evidence the deposition of Dr. J B. Crawford taken on July 31, 1893, filed in compliance with the rules of court, and regular in every respect; for the purpose of showing that the insured died from the result of a criminal abortion, and that she had had abortions performed on her prior to that time.

Plaintiff objected because it appeared from the deposition that Dr Crawford was the attending physician of the insured in her last sickness, and that his knowledge of her condition was gained from statements made by her to him, and therefore it is incompetent testimony under the act of 1895.

By the Court: I have been able only to give this question a very brief examination, but from my reading of the authorities, especially that in 17 Sergeant & Rawle, I am of opinion that you cannot prove by the deposition of Dr. Crawford what you could not prove if he were living and here upon the stand himself. This act of 1895 seems to go to the evidence and not to the source of it. The objections to the depositions are sustained, exception noted for the defendant, bill sealed. [1]

Defendant offered portions of the deposition of Dr. Crawford above referred to, which were not necessary to enable the physician to act, as follows:

"She said, 'Oh, no, I am not going to die; I have had as many as six abortions, or had an abortion produced as many as six times, and I have always gotten well and I will now.'"

Plaintiff objected because the testimony is incompetent under the act of 1895, and because it is immaterial and irrelevant.

By the Court: I do not see my way clear to admitting this portion of the testimony. The objections are sustained, exception noted for the defendant, bill sealed. [2]

Defendant offered to prove by Dr. Louise Stoeckel, the witness on the stand, that she treated the insured in her last illness, and that she delivered the foetus in this case, and what the age of the foetus was.

Plaintiff objected on the ground that it appeared that she was the medical advisor or physician and that the information she obtained was in her capacity as a medical advisor.

By the Court: The objections are sustained, exception noted for the defendant, bill sealed. [3]

Defendant offered to prove by the witness on the stand the physical condition and general condition of this woman, the fact that she was sound and healthy and well formed and normal in every condition and in every way, for the purpose of showing that there was no reason to have this operation performed.

Plaintiff objected because any information she got while she was her attending physician and necessary to treat her, cannot be divulged without the consent of the deceased.

By the Court: You had better introduce evidence first that it was performed. Objection sustained, exception noted for the defendant, bill sealed.

Defendant offered proofs of death to show that the abortion was performed, and proofs of death were admitted. (Witness still on stand.) Defendant renewed his former offer.

Plaintiff objected because the witness had already testified that all the information she had as to Miss Roberts, or her condition, was obtained by her in her capacity as a physician, and was necessary to enable her to treat her.

By the Court: The objections are sustained, exception noted for the defendant, bill sealed. [4]

Verdict and judgment for plaintiff for $3,795. Defendant appealed.

Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions.

Judgment reversed and a new venire awarded.

W. S. McLean and J. B. Woodward, for appellant. -- This Court has held in numerous cases that the deposition of a witness taken in a former action, where the witness has since become incompetent, may be read in evidence on the part of the same parties or their legal representatives: Galbraith v. Zimmerman, 100 Pa. 374; Endlich on the Interpretation of Statutes (ed. 1888), sec. 282; Bedford v. Shilling, 4 S. & R. 401; Edington v. Ins. Co., 77 N.Y. 571; Hatch v. Mut. Life Ins. Co., 120 Mass. 550; Ogle v. Turnpike Co., 13 S. & R. 257; Satterlee v. Matthewson, 16 S. & R. 184; Bleakney v. The Bank, 17 S. & R. 66; Lamberston et al. v. Hogan, 2 Pa. 25; Fenelon's Petition, 7 Pa. 173; Lefever v. Witmer, 10 Pa. 505 The Hickory Tree Road, 43 Pa. 142; Underwood v. Lilly, 10 S. & R. 101; Bechtol v. Cobaugh, 10 S. & R. 123; Eakin et al. v. Raub, 12 S. & R. 362.

H. W. Palmer, for appellee. -- It is not true that testimony competent when taken is always, under all circumstances, competent thereafter: Irwin v. Reed, 4 Yeates, 512; Chess v. Chess, 17 S. & R. 412.

When offered the testimony was open to any objection that could have been made had the witness been present: Wright v. Tatham, 1 Ad. & El. 21; Crary v. Sprague, 12 Wend. 41: Hay's App., 91 Pa. 265; Pratt v. Patterson, 81 Pa. 114.

Before STERRETT, C.J., GREEN, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE GREEN:

The Act of June 18, 1895, P.L. 195, is in the following words, viz: "That no person authorized to practice physics or surgery shall be allowed, in any civil case, to disclose any information which is acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without his consent." It will be seen at once that the act establishes a personal incapacity only. It is the physician, attending a patient, who is prohibited from testifying to information acquired while rendering professional service. He is prohibited by the words, "no person authorized" etc., shall be allowed to disclose any information, etc. No other person who being present at the time when the information was communicated, and heard the same, would be prevented by this act from testifying to the very matter in question. It is only the physician himself who is prohibited, and that is manifestly on account of the professional relation between himself and his patient.

In the present case the witness was examined and his deposition taken at a time anterior to the passage of the act of 1895 and at that time he was perfectly competent to testify to the matter in question. Subsequently, and before the trial in court, the witness, Dr. Crawford, died, and in 1895, also before the trial, the act above quoted was passed. On the trial the deposition of Dr. Crawford was offered in evidence and was objected to and rejected, because of the incompetency at that time of the witness if he had been living. In this ruling we think there was error. The rule is quite familiar, and has been many times enforced, that if a person is examined as a witness in a cause, and is at the time competent to testify, but subsequently, and before the trial, he becomes incompetent, his testimony taken when he was competent is admissible. Thus in Evans v. Reed, 78 Pa. 415, both parties testified, a verdict was rendered, and afterwards a new trial was awarded. One of the parties died before the case was tried the second time, his administrator was substituted, and on the second trial the testimony of the deceased party taken on the first trial was offered in evidence and rejected. We held this to be error, and reversed the judgment for that reason. We said: "When the plaintiff in this case testified he was unquestionably competent. His testimony then became a part of the evidence in the case. If the second trial had taken place in his lifetime, he being at the time out of the jurisdiction of the court, or unable by reason of sickness to be present, his testimony could have been read in evidence. So, for a like reason, it may be after his death. The evidence was not taken in an action in which, at the time, any executor, administrator or guardian was a party. We see no reason why a subsequent change in the form of action should so operate as to exclude the testimony. It is not the form of action, but identity of subject-matter in controversy, that is...