[169] Stevenson v. The New York, etc., Railroad Co., 2 Duer, 341; same case, 1 Am. & Eng. R. R. Cases, 343; Cincinnati, etc., R. R. Co. v. Davis, 43 Am. & Eng. R. R. Cases, 459.

[170] Bronson v. Hoffman, 7 Hun, 674; Williams v. Glenny, 16 N. Y., 389, and see Ordronaux on “Juris. of Med.,” supra, p. 46; but see also Danzinger v. Hoyt, 46 Hun, 270.

[171] And it has been held that a decedent’s estate is liable for fees of expert, who by direction of probate court examined widow and testified as to her pregnancy. This notice was put upon the ground that his testimony was necessary for the information of the court in a matter before it affecting the disposition of the estate. Rollwager v. Powell, 8 Hun, 10.

[172] Crain v. Baudouin, supra; Shelton v. Johnson, 40 Iowa, 84; Garry v. Stadlen, 67 Wis., 512.

[173] And a physician may recover the value of services rendered by his students. People v. Monroe, 4 Wend. (N. Y.), 200; Jay Co. v. Brewington, 74 Ind., 7. And the physician in attendance is not liable to the physician thus called. Guerard v. Jenkins, 1 Strobh., 171.

[174] Deway v. Roberts, 46 Michigan, 160.

[175] MacPherson v. Chedell, 24 Wend., 15; Adams v. Stevens, 26 Wend., 451; Story on Bailments, § 37.

[176] Duly licensed physicians are presumed to be experts as to the value of other physicians’ services. Beekman v. Platner, 15 Barb., 550.

[177] Bellinger v. Craigue, 31 Barb., 534; Gates v. Preston, 41 N. Y., 113; Blair v. Bartlett, 75 N. Y., 15. The general rule is that in an action arising on contract damages arising for a tort cannot be set up as a counter-claim. It follows from this that in an action of a physician for services, damages for malpractice could not be recouped or counter-claimed ordinarily. The way in which that rule is avoided, and the safer method, is for the defendant to plead that it was part of the contract of the physician (which it undoubtedly is), to perform his services in a faithful and skilful manner, and that he committed a breach of it, thus charging the damages which flowed from his acts as a breach of contract, not as a cause of action in tort for malpractice or negligence. If that is done the counter-claim arising in malpractice can probably be pleaded in an action for services, and possibly a counter-claim in excess of the amount claimed by the physician recovered as an affirmative judgment against him. On the other hand, in an action for malpractice brought by the patient against a physician, which is generally in form an action for a tortious act, or neglect, the physician cannot plead the performance of services and the non-payment of his bill as a counter-claim or recoupment, because that arises on a contract. If there is any exception to this rule it will be found to grow out of the language of sections 549 and 550 of the Code of Civil Procedure of the State of New York, and of similar enactments in other States, which permit counter-claims arising out of the same subject-matter as the cause of action, to be pleaded in that action. In New York State, however, any effect of that kind is negatived by the general provision that the actions must not only arise out of the same subject-matter but be of the same kind and class.

[178] The degree of care and skill required to be shown to entitle the physician or surgeon to recover compensation for his services has already been stated to be simply such care and skill as are possessed by the majority of other professional men of the same school of practice at the time, or what is known as ordinary care and skill.

[179] Foster v. Coleman, 1 E. D. Smith, 85; Larue v. Rowland, 7 Barb., 107; Clarke v. Smith, 46 Barb., 30; Knight v. Cunningham, 6 Hun, 100; Bay v. Cook, 22 N. J. L., 343.

[180] The writer is indebted for many valuable suggestions concerning this subject to Ansley Wilcox, Esq., of the Buffalo, N. Y., Bar, and his admirable lectures on Medical Jurisprudence before the Medical Department of the University of Buffalo.

[181] The conservatism of lawyers is proverbial. It is hard to convince them that forms that have been long in use and have been found to serve a useful purpose in the past, are not applicable to new conditions as they arise; for instance, that the methods of procuring the attendance and of examining ordinary witnesses do not fit the necessities of expert testimony. But the question as to the defects of the system as it now exists has been brought to public attention in the journals of the day, in papers read before medical societies and bar associations, and in arguments in legislative bodies, and it is hoped and believed that ere long a reform, something of the character indicated, may be brought about in this very important matter.

[182] It has been a matter of great discussion whether an expert is compellable to testify on matters of opinion, without compensation, the weight of the decisions being that he is not bound to do so. 1 Greenleaf on Evidence, § 310; 1 Warwick Law Assizes, 158; Parkinson v. Atkinson, 31 L. J. (n. s.) C. P., 199; Webb v. Page, 1 E. & K., 25; People v. Montgomery, 13 Abb. Pr., n. s., 207; Ex parte Roelker, 1 Sprague, 276; Buchanan v. The State, 59 Ind., 1; Dills v. The State, Id., 15; U. S. v. Howe, 12 Cent. L. J., 193; contra, 6 Central Law Journal, 11; Ex parte Dement, 53 Ala., 389; Sumner v. The State, 5 Tex., 21; 6 Southern Law Review, 706.; and see generally Wharton on Evidence, sec. 380, note 66, sec. 456; Lawson on Expert and Opinion Evidence; Rogers on Expert Testimony. As to the compensation being paid before the testimony is given, see Wharton on Evidence, secs. 456, 380; People v. Montgomery, 13 Abb. Pr., n. s., 207.

It is proper, although not necessary, that upon cross-examination the witness should be asked as to his fee; that is, as to whether he expects to receive any additional fee besides that of an ordinary witness, and it has been held that where the expert witness testified that he was to receive a fee which was contingent upon the case, he was disqualified from testifying. Pollock v. Gregory, 9 Bosworth, N. Y. Superior Ct. Rep., 121-124.

[183] This latter case holds that a second expert may be called to testify after the first has been thus challenged, to support his capacity and skill. The contrary rule, however, obtains in Alabama (Tellis v. Kidd., 12 Ala., 643; Pugh v. State, 44 Ala., 33). Neither can an expert be contradicted by books of science; that is, by books of science introduced in evidence as such (Wharton on Evidence, 666, 721). This is so because the rule is well established that books, although of great authority in themselves, may not, even if proven to be such, be placed in evidence. They may, however, be read to the witness, and so be placed upon the record, passage by passage, and the witness may be asked whether he agrees with that doctrine, not, however, as part of his direct examination, but as part of his cross-examination.

A medical expert is sometimes confronted upon the witness-stand by long quotations from well known medical text-books, and he is asked whether the doctrines, opinions, etc., there laid down are sound. Especially is this done when such doctrines and opinions are in apparent discord with his evidence as he gives it. In such cases as this, however honest, however intelligent and non-partisan the witness may be (except as any opinion on one side or the other of a disputed question may be considered partisan), he is placed in a very difficult position. If the citations and questions are from well-known authors, and he is a modest man, as most men of learning are, it will be difficult for him to deny that such authorities as these have great weight, even more weight than his experience, skill, and knowledge entitle him to claim. On the other hand, if he takes the bold course and sticks to his opinion, he is cried down the winds by counsel in summing him up, as a man of gall, boldness, audacity and egotism. His course is difficult whichever way he turns, but modesty as well as honesty is usually the best policy. Perhaps the best thing for such a witness to do under such circumstances is to do as once did the great mental alienist Dr. John P. Gray, when, having given an opinion on a question of insanity, he was cross-examined as to the different theories from time to time prevalent as to what insanity was, and having stated what theories were then the accepted ones, he was confronted by counsel on his cross-examination with the question: “What do you think of Dr. John P. Gray as an authority on that question?” and then with his own writings, quite extensive, of many years before, in which he had advocated theories apparently different from those which he had professed upon the witness-stand. Placed in this position, the distinguished gentleman simply replied: “It is true I cherished those theories at that time, but I lived to learn better,” thus substantially disarming any criticism that could be made of him in his capacity as a witness in that case.

[184] For general rules for the conduct of expert witnesses see infra.

[185] The principal classes of such subjects may, however, be briefly stated as follows:

1. Causes of death; especially in cases of homicide, suicide, accident, etc., including poisoning.

2. Causes, nature, and extent of personal injuries, by violence, accidents, explosions, railway disasters, collision between vessels, etc.

3. Birth of infants; was infant born dead or alive; if dead, was death the result of natural causes or of internal violence; age of infant at the time of birth or death. Also causes of alleged sterility or pregnancy; time pregnancy has existed; also cases of alleged impotency.

4. Rape, abortion, bastardy, pederasty, onanism, masochism, and many other matters relating to the sexual organs.

5. Malpractice cases, involving the degree of care and skill usual, and that used in the case under investigation, and involving delicate questions as to the propriety of the treatment adopted, etc.

[186] See also 1 Bishop Crim. Law, sec. 36; Rex v. Romiski, 1 Moody, 19; Reg. v. Ellis, 2 Car. & K., 470.

[187] In such cases as these the patient would have a right of action in the civil courts for damages against the physician or surgeon, because he had taken wilful and wicked advantage of his professional relation to her, to do her a grievous wrong.

[188] The Pennsylvania courts at an early period refused to follow this common-law doctrine, and held that the moment the womb is instinct with life in embryo and the process of gestation has begun the crime may be perpetrated. Mills v. Com., 13 Pa. St., 631.

[189] 1 Bishop Crim. Law, sec. 217, citing Rex v. Williamson, 3 Car. & P., 635.

[190] The same learned and philosophical text-writer (2 Bishop Crim. Law, sec. 664) compares the English and American cases and declares that the difference between them is more apparent than real.

[191] See Rice v. The State, 8 Mo., 561; Fairlee v. People, 11 Ill., 1; Holmes v. State, 23 Ala., 17; Rex v. Spilling, 2 M. & Rob., 107; Ferguson’s Case, 1 Lew., 181; Thomas v. Winchester, 2 Selden, N. Y. Court of App., 397; Com. v. Pierce, 138 Mass., 165, and cases cited; State v. Hahn, 38 Ark., 605; Wharton’s Crim. Law, sec. 1015; Elwell on Malpractice, etc., 238, 239.

[192] 1 Bishop Crim. Law, sec. 558, citing Groenvelt’s case, 1 Lord Raymond, 213; Rex v. Long, 4 C. & P., 398.

[193] See also Kelsey v. Hay, 84 Ind., 189; Small v. Howard, 128 Mass., 131; Gates v. Fleisher, 67 Wis., 286; Smothers v. Hanks, 34 Iowa, 286; Almond v. Nugent, 34 Iowa, 300; Haire v. Reese, 7 Phila. (Pa.), 138; Nelson v. Harrington, 72 Wis., 591.

[194] Ruddock v. Low, 4 F. & F., 519; Musser v. Chase, 29 Ohio St., 577.

[195] See particularly Gieselman v. Scott, 25 Ohio St., 86; Lanphier v. Phipos, 8 C. & P., 475; Pym v. Roper, 2 F. & F., 783; Carpenter v. Blake, 60 Barb., 485, 50 N. Y., 696, 10 Hun, 358, 75 N. Y., 12; Leighton v. Sargent, 7 N. H., 460.

[196] Synonymous terms with “reasonable care” are “fair knowledge and skill,” Jones v. Angell, 95 Ind., 376; “ordinary care and skill,” Heath v. Glisan, 3 Oregon, 64.

[197] See Corsi v. Maretzek, 4 E. D. Smith, 1, quoted at p. 362 of this volume.

[198] Small v. Howard, 128 Mass., 131, and cases cited.

[199] Clairvoyancy of course is not recognized in the courts as medical or surgical practice. And any one professing to treat patients as a clairvoyant must be held to the standard of regular practising physicians in the neighborhood where the clairvoyant operates. Nelson v. Harrington, 72 Wis., 591; Bibber v. Simpson, 59 Me., 181; Musser v. Chase, 29 Ohio St., 577.

[200] McCandless v. McWha, 22 Pa. St., 261; Carpenter v. Blake, supra; Leighton v. Sargent, supra.

[201] Kelley v. Hay, 84 Ind., 189; Stone v. Evans, 32 Minn., 243; Teft v. Wilcox, 6 Kans., 646; Brooke v. Clark, 57 Tex., 105; Graunis v. Branden, 5 Day (Conn.), 260, s. c., 5 Am. Dec., 143; Wenger v. Calder, 78 Ill., 275; Carpenter v. Blake, supra.

[202] Hyrne v. Irwin, 23 S. Car., 226, s.c., 55 Am. Rep., 15; Whittaker v. Collins, 34 Minn., 209.

[203] Boor v. Lowrey, 103 Ind., 468.

[204] Hitchcock v. Burgett, 38 Mich., 501.

[205] See U. P. R. R. Co. v. Botsford, 141 U. S., 250; McQuiggan v. D., L. & W. R. R. Co., 129 N. Y., 50; Roberts v. O. & L. C. R. Co., 29 Hun, 154, and cases cited.

[206] Olmstead v. Gere, 100 Pa. St., 127; Carpenter v. Blake, supra.

[207] Greenleaf Ev., s. 236; Taylor Ev., s. 908; Bouvier’s Law Dictionary, p. 363; Am. and Eng. Enc. of Law, vol. 19, p. 122; Code Civ. Pro. Cal., s. 1,881; Mills’ Ann. Stats. of Col., 1891, s. 4,824; Rev. Stats. Idaho, 1887, s. 5,958; Gen. Stats. Minn., 1891, s. 5,094; Comp. Stats. Mont., 1887, s. 650; Gen. Laws Ore., 1892, s. 712; Comp. Laws Utah, 1888, s. 3,877.

[208] Taylor Ev., s. 911; Stephen, Dig. of Ev., art. 115; Greenleaf Ev., s. 237.

[209] The successive efforts made to extend protection by judicial ruling to communications between physician and patient will appear from a consideration of the cases that are usually cited as authority for the English rule: Annesley v. Earl of Anglesea (1743), 18 How. St. Tr., 1,139; Duchess of Kingston’s case (1776), 20 How. St. Tr., 355 (cf. p. 572, p. 585, p. 586, p. 613); Wilson v. Rastall (1791)., 4 Term R. (Durnford & East), 753; Rex v. Gibbons (1823), 1 C. & P., 97; Broad v. Pitt (1828), 3 C. & P., 518; Greenough v. Gaskell (1832), 1 My. & K., 98. See also Wheeler v. Le Marchant, 50 L. J. Ch., 795 (1880).

1 Phillips Ev., p. 136; Starkie Ev., p. 40; Wharton Ev., s. 606; Greenleaf Ev., secs. 248, 237, 239; Taylor Ev., s. 916; Stephen, Dig. of Ev., art. 115; Rogers’ Expert Testimony, s. 45; Reynolds’ Theory of Evidence, s. 86.

It is to be noted that none of the cases which are cited as authority for the common-law rule as usually stated are really precedents to that extent. The cases of the Duchess of Kingston (supra); Lord William Russel (9 How. St. Tr., 602); Dr. Ratcliff (9 How. St. Tr., 582); Earl Ferrers (19 How. St. Tr., 886), and Rex v. Gibbons (supra), were all criminal prosecutions; and in Annesley v. Anglesea, Wilson v. Rastall, Broad v. Pitt, and Greenough v. Gaskell (supra), which were civil causes, the question of the privilege of a medical man was not really in dispute. It is well settled that communications between attorney and client are privileged, and yet Judge Pitt Taylor expresses some doubt whether the protection cannot be removed without the client’s consent in cases where the interests of criminal justice require the production of the evidence (Taylor Ev., s. 929). This intimation of a distinction between criminal and civil actions, even in the case of attorneys, suggests the possibility of a difference between those two classes of actions in the case of medical men. The cases cited establish authoritatively that in criminal prosecutions, at common law, confidential communications between medical man and patient are not privileged; but in civil causes, the opinions of the eminent judges seem to be obiter dicta. It is, however, established by other decisions that mere confidential relations do not prevent the disclosure of communications. (For the case of bankers, see Loyd v. Freshfield, 2 C. & P., 325; managers, Anderson v. British Bank of Columbia. 45 L. J. Ch., 449; clerks, Lee v. Burrell, 3 Camp., 337; Webb v. Smith, 1 C. & P., 337; stewards, Vaillant v. Dodemead, 2 Atk., 524; Earl of Falmouth v. Moss, 11 Price, 455; Pursuivant of Herald’s College, Slade v. Tucker, 49 L. J. Ch., 644.)

The opinions of so many eminent men, though strictly speaking obiter dicta, together with the uniform statements of text-writers based upon them, leave no room for reasonable doubt that independent of statute, in civil as well as criminal causes, communications between medical adviser and patient are not entitled to protection from disclosure in evidence.

[210] See Duchess of Kingston’s case (supra, p. 91, note 3) (cf. ib., pp. 572, 585, 586, 613).

[211] Greenleaf Ev., secs. 249, 252, 252a.

[212] Greenleaf Ev. s. 249.

[213] See Barnes v. Harris, 7 Cush., 576; Hatton v. Robinson, 4 Pick, 422. See also historical review of the attorney’s privilege and the reasons for it, by Judge Seldon, at Special Term, in Rochester City Bank v. Suydam, 5 How. Pr. (N.Y.), 254.

[214] Wilson v. Rastall, 4 Term R., 753.

[215] Best, Prin. of Ev., s. 582.

[216] The revisers of the New York Statutes in 1828 in their report (5 N. Y. Stats. at Large, edited by John W. Edmonds, 2d ed., p. 726) stated as their reason for suggesting a statutory privilege for communications between physician and patient, that “in 4 Term Rep., 580, Buller, J. (to whom no one will attribute a disposition to relax the rules of evidence), said it was ‘much to be lamented’ that the information specified in this section (2 R. S., p. 406, s. 73) was not privileged. Mr. Phillips expressed the same sentiments in his treatise on Evidence, p. 104. The ground on which communications to counsel are privileged is the supposed necessity of a full knowledge of the facts, to advise correctly, and to prepare for the proper defence or prosecution of a suit. But surely the necessity of consulting a medical adviser, when life itself may be in jeopardy, is still stronger. And unless such consultations are privileged, men will be incidentally punished by being obliged to suffer the consequences of injuries without relief from the medical art, and without conviction of any offence. Besides, in such cases, during the struggle between legal duty on the one hand and professional honor on the other, the latter, aided by a strong sense of the injustice and inhumanity of the rule, will in most cases furnish a temptation to the perversion or concealment of truth, too strong for human resistance. In every view that may be taken of the policy, justice or humanity of the rule as it exists, its relaxation seems highly expedient.”

These or similar reasons have prevailed in many States and Territories to bring about a statutory restriction on disclosures.

[217] The following cases show or tend to show that the English rule is in operation in Connecticut, Maine, Maryland, Massachusetts, New Jersey, Texas, and West Virginia: Wilson v. Town of Granby, 47 Conn., 59; Fayette v. Chesterville, 77 Me., 28; Weems v. Weems, 19 Md., 334; Morrissey v. Ingham, 111 Mass., 63; Barber v. Merriam, 11 Allen, 322; Castner v. Sliker, 4 Vr., 95; Steagald v. State, 3 S. W. Rep., 771; Jarrett v. Jarrett, 11 W. Va., 584. For the common-law rule in the States where statutes are now in force, see Campau v. North, 39 Mich., 606; Territory v. Corbett, 3 Mont., 50; Pierson v. People, 79 N. Y., 424; Edington v. Ætna L. I. Co., 77 N. Y., 564; Buffalo Loan Tr. & S. D. Co. v. Knights Templar, etc., 126 N. Y., 450.

[218] Dig. Stats. Ark., 1884, s. 2,862; Code Civ. Pro. Cal., s. 1,881 as amended Law 1893, c. 217; Mills’ Ann. Stats. Col., 1891, secs. 4,824, 4,825; R. S. Ida., 1887, s. 5,958; Myers’ Ann. R. S. Ind., 1888, s. 497; Act of May 2d, 1890, U. S. Stats. at Large, c. 182, making the laws of evidence of Arkansas applicable to Indian Territory; McClain’s Ann. Code Iowa, 1888, s. 4,893; Code Civ. Pro. Kan., s. 323; Gen. Stats. Kan., 1889, s. 4,418; Howell’s Ann. Stats. Mich., 1882, s. 7,516; Kelley’s Gen. Stats. Minn., 1891, s. 5,094; R. S. Mo., 1889, s. 8,925; Comp. Stats. Mont., 1887, s. 650; Code of Civ. Pro. Neb., secs. 333, 334; Bailey & Hammond’s Gen. Stats. Nev., 1885, s. 3,406; Code Civ. Pro. N. Y., secs. 834, 836, as amended by Laws 1893, c. 295; Laws of N. C., Act of 1885, c. 159; Code Civ. Pro. Dak., 1883, s. 499; Smith & Benedict’s R. S. Ohio, 1890, s. 5,241; Stats. of Okl., 1893, s. 4,213; Hill’s Gen. Laws Ore., 1892, secs. 712, 713; Code Civ. Pro. Dak., 1883, s. 499; Code Civ. Pro. Utah, s. 1,156; Comp. Laws of Utah, s. 3,877; 2 Hill’s Ann. Stats. Wash., 1891, s. 1,649: Sanborn & Berryman’s Ann. Stats. Wis., 1889, s. 4,075; R. S. Wyo., 1887. s. 2,589. For the chronological order and the date of the passage of the earlier of these laws, see note to Gartside v. Connecticut Mutual L. I. Co., 76 Mo., 446.

[219] Rev. Stats. U. S., s. 721.

[220] Conn. Mut. Life Ins. Co. v. Union Trust Co., 112 U. S., 250. See also Dreier v. Continental L. I. Co., 24 Fed. Rep., 670; Adrereno v. Mutual Res. Fund L. I. Co., 34 Fed. Rep., 870.

[221] Logan v. United States, 144 U. S., 263; United States v. Reid, 12 How., 361.

[222] See references to the several statutes in note 2 on p. 94.

[223] See Freel v. Market St. Cable Ry. Co., 31 Pac. Rep., 730 (Supr. Ct. Cal.).

[224] This seems to be the proper construction of the Kansas and Oklahoma statutes, though what seem to be typographical errors in the published laws render it doubtful.

[225] For laws regulating practice in the several States and Territories, see infra, p. 137 et seq.

[226] Laws N. Y., Act 1893, c. 295.

[227] N. Y. Code Civ. Pro., s. 836, as amended Act 1893, c. 295. A similar exception was introduced by Act 1891, c. 381, and modified by Act 1892, c. 514.

[228] Supra, p. 94, note 1.

[229] Bishop, Written Laws, secs. 119, 155; Potter’s Dwarris, Statutes, p. 185; 1 Bouvier’s Law Dictionary, “Construction,” p. 386.

[230] Masonic Mut. Ben. Assn. v. Beck, 77 Ind., 203. For the construction of particular words and phrases, see infra, p. 115 et seq.

[231] For waiver of the privilege, see infra, p. 106.

[232] Penn Mut. L. I. Co. v. Wiler, 100 Ind., 92.

[233] Lunz v. Mass. Mut. L. I. Co., 8 Mo. App., 363.

[234] Kling v. City of Kansas, 27 Mo. App., 231.

[235] Gartside v. Conn. Mut. L. I. Co., 76 Mo., 446; said to be overruled by Groll v. Tower, 85 Mo., 249, in Squires v. City of Chillicothe, 89 Mo., 226; but followed in Thompson v. Ish, 99 Mo., 160.

[236] N. Y. Code Civ. Pro., s. 3,345. Disclosures by physicians are restricted by secs. 834, 836 of said Code.

[237] Code Civ. Pro., secs. 834, 836, as new existing are re-enactments with modifications of 2 R. S., p. 406, s. 73.

[238] People v. Stout, 3 Park Cr. Rep., 670; Edington v. Mut. L. I. Co., 67 N. Y., 185. Cf. Kendall v. Grey, 2 Hilt., 300; Pearsall v. Elmer, 5 Redf., 181. A disposition to construe the statute strictly was disclosed in the opinion of Earl, J., in Edington. v. Ætna L. I. Co., 77 N. Y., 564, but his personal views were disapproved in subsequent cases; see Grattan v. Metro. L. I. Co., 80 N. Y., 281; Renihan v. Dennin, 103 N. Y., 573; Buffalo Loan, etc., Co. v. Knights Templar, etc., 126 N. Y., 450. See also Jones v. Brooklyn, etc., Ry. Co., 3 N. Y. Supp., 253; in matter of Darragh, 52 Hun, 591; Marx v. Manhattan Ry. Co., 56 Hun, 575; Treanor v. Manhattan Ry. Co., 28 Abb. N. C., 47.

[239] See Collins v. Mack, 31 Ark., 684.

[240] N. Y. Code of Pro., s. 390; N. Y. Code of Civ. Pro., s. 870.

[241] Edington v. Mut. L. I. Co., 5 Hun, 1; s. c., 67 N. Y., 185.

Under sec. 873, Code Civ. Pro., as amended by Law 1893, c. 721, the plaintiff in an action for personal injuries may be compelled to submit to a physician’s inspection. Cf. Page v. Page, 51 Mich., 88.

[242] Supra, p. 96.

[243] Guptill v. Verback, 58 Iowa, 98. In this case, however, it was determined that it did not appear that a crime was intended.

[244] 2 R. S., 406, s. 73.

[245] Act 1876, c. 448, Code Civ. Pro., secs. 834, 836.

[246] Act 1877, c. 417, s. 1.

[247] 3 R. S., 1029, s. 19. Superseded by Code Crim. Pro., s. 392, as amended by Act 1892, c. 279, s. 7. People v. Murphy, 101 N. Y., 126. People v. Brower, 53 Hun, 217.

[248] Pierson v. People, 79 N. Y., 424; People v. Harris, 136 N. Y., 423.

[249] Pierson v. People, 18 Hun, 239.

[250] People v. Murphy, 101 N. Y., 126 (1886).

[251] People v. Brower, 53 Hun, 217 (1889). See also People v. Stout, 3 Park Cr. Rep., 670.

[252] Johnson v. Johnson, 4 Paige, 460; s. p., 14 Wend., 636; Hanford v. Hanford, 3 Edw. Ch., 468; Hunn v. Hunn, 1 T. & C., 499.

In Indiana, information as to abortion and criminal intimacy is protected in an action for criminal conversation. Harris v. Rupel, 14 Ind., 209. In Hewitt v. Prime, 21 Wend., 77 N. Y. (1839), in an action for seduction the testimony of a physician that he was asked for medicine to produce an abortion was admitted. It was stated that such testimony is not privileged, but there were other reasons for the judgment, and the case seems to be at variance with later decisions on that principle.

See also Briggs v. Briggs, 20 Mich., 34.

[253] Allen v. Pub. Adm., 1 Bradf., 221 (1850).

[254] Staunton v. Parker, 19 Hun, 55 (1879).

[255] Citing the fact that no objection was raised in the noted case of Delafield v. Parish, 25 N. Y., 1.

[256] Renihan v. Dennin, 103 N. Y., 573 (1886), followed in Loder v. Whelpley, 111 N. Y., 239 (1888). In re Hannah, 11 N. Y. St. Rep., 807 (Supr. Ct., G. T., 1887). In matter of Connor (Sup. Ct., G. T.), 27 N. Y. St. Rep., 905 (1889); Mason v. Williams (Sup. Ct., G. T., 1889), 6 N. Y. Supp., 479; Van Orman v. Van Orman (Sup. Ct., G. T., 1890), 34 N. Y. St. Rep., 824. See also In matter of Halsey (N. Y. Surr.), 29 N. Y. St. Rep., 533 (1890). Allen v. Pub. Adm., 1 Bradf., 221, had been overruled in part by Edington v. Mut. L. I. Co., 67 N. Y., 185 (1876), but not on this point.

[257] Supra, p. 98.

[258] Heuston v. Simpson, 115 Ind., 62.

[259] Fraser v. Jennison, 42 Mich., 206. In this case the testimony was admitted on the ground that the representative could waive the privilege. See Thompson v. Ish, 99 Mo., 160.

[260] In re Benson (Monroe County Court), 16 N. Y. Supp., 111 (1891). Some States have statutory provisions for the qualification of physicians as examiners in lunacy, e.g., Laws of Col., 1893, c. 119, s. 5; Laws of N. Y., 1874, c. 446, t. 1, art. 1, s. 1. The bearing of these provisions upon the statutory privilege has not been made clear.

[261] In matter of Baird, 11 N. Y. State Rep., 263 (1887).

[262] In matter of Hoyt, 20 Abb. N. C. (Sup. Ct., G. T., 1887).

[263] 13 N. Y. W. D., 505 (1880).

[264] Dilleber v. Home L. I. Co., 13 N. Y. W. D., 505 (1881).

[265] The following cases in which the rule has been enforced have arisen out of contracts of life insurance: Masonic Mut. Ben. Assn. v. Beck, 77 Ind., 203; Excelsior Mut. Aid Assn. v. Riddle, 91 Ind., 84; Penn Mut. L. I. Co. v. Wiler, 100 Ind., 92; Ætna L. I. Co. v. Denning, 123 Ind., 390; Lunz v. Mass. Mut. L. I. Co., 8 Mo. App., 363; Edington v. Mut. L. I. Co., 67 N. Y., 185; Grattan v. Metrop. L. I. Co., 80 N. Y., 281; s. p., 92 N. Y., 274; Conn. Mut. L. I. Co. v. Union Tr. Co., 112 U. S., 250.

[266] See Renihan v. Dennin. 103 N. Y., 573, dictum to same effect.

As to whether a physician may contradict his patient to prevent fraud, see infra, p. 111 et seq.

[267] Supra, p. 97.

[268] Infra, p. 119.

[269] “Physician: A person who has received the degree of doctor of medicine from an incorporated institution; one lawfully engaged in the practice of medicine.”—Bouvier’s Law Dict., vol. ii., p. 412.

“Surgeon: One who applies the principles of the healing art to external diseases or injuries, or to internal injuries or malformations, requiring manual or instrumental intervention. One who practises surgery.”—Bouvier’s Law Dict., vol. ii., p. 698, q. v.

[270] Edington v. Mutual L. I. Co., 5 Hun, 1.

[271] People v. Stout, 3. Park Cr. Rep., 670 (1858). In this case the witness was undoubtedly a duly qualified physician under the State law.

[272] Wiel v. Cowles, 45 Hun, 307 (1887) (Supreme Ct., Gen. T.). Sec. 356, N. Y. Penal Code, which was in operation at that time, was repealed by Act 1887, c. 647, s. 9, but the prohibition of unauthorized practice is now to be found in Act 1893, c. 661, s. 140.

[273] Kendall v. Gray, 2 Hilt., 300 (N. Y. Com. Pl., Gen. T., 1859).

[274] Brown v. Hannibal & St. J. R. R. Co., 66 Mo., 588.

[275] Carrington v. St. Louis, 89 Mo., 208.

[276] Infra, p. 128.

[277] Record v. Village of Saratoga Springs, 46 Hun, 448 (N. Y. Supr. Ct., Gen. T.).

[278] Supra, p. 96.

[279] Penn Mut. L. I. Co. v. Wiler. 100 Ind., 92; Morris v. Morris, 119 Ind., 341.

[280] Grand Rapids & Ind. R. R. Co. v. Martin, 41 Mich., 667; Fraser v. Jennison, 42 Mich., 206.

[281] Carrington v. St. Louis, 89 Mo., 208; Squires v. City of Chillicothe, 89 Mo., 226; Blair v. C. & A. R. R. Co., 89 Mo., 334; s. p., 89 Mo., 383; Adrereno v. Mut. Res. F. L. I. Co., 34 Fed. Rep., 870; Davenport v. City of Hannibal, 18 S. W. Rep., 1122.

[282] The most of the cases in which the rule has been enforced are those in which the physician has actually testified without raising the objection himself, and in which, therefore, the rule could not be enforced if the physician’s waiver were valid, but the following cases particularly are in point: Harris v. Rupel, 14 Ind., 209; Barton v. Allbright, 29 Ind., 488; Storrs v. Scougale, 48 Mich., 387; Lunz v. Mass. Mut. L. I. Co., 8 Mo. App., 363; Johnson v. Johnson, 14 Wend., 636; Hanford v. Hanford, 3 Edw. Ch., 468; People v. Stout, 3 Park Cr. Rep., 670.

[283] Mulhado v. Brooklyn City R. R. Co., 30 N. Y., 370; Heller v. Sharon Springs, 28 Hun, 344; Winner v. Lathrop, 67 Hun, 511.

[284] See Penn Mut. L. I. Co. v. Wiler, 100 Ind., 92; Territory v. Corbett, 3 Mont., 50; Johnson v. Johnson, 14 Wend., 636; Babcock v. People, 15 Hun, 347.

[285] Barton v. Allbright, 29 Ind., 488; Campau v. North, 39 Mich., 606; Territory v. Corbett, 3 Mont., 50; Blair v. Chic. & Alton R. R. Co., 89 Mo., 334; Johnson v. Johnson, 14 Wend. (N. Y.), 636.

[286] N. Y. Code Civ. Pro., s. 836 (Act 1876, c. 448), as amended Act 1877, c. 416, s. 185. Previous to the Code of Civil Procedure the provision for waiver was not in the statute, 2 R. S., 406, s. 73.

The amendment of 1891 allowed an express waiver of information, except confidential communications and such facts as would tend to disgrace the memory of the patient, by his personal representatives, or if the validity of the last will and testament of the patient is in question, by the executor or executors named in said will. Law 1891, c. 381.

The amendment of 1892 added the surviving husband, widow, heir at law, any of the next of kin or any other party in interest, in case the validity of the last will and testament of the patient is in question. Law 1892, c. 514. The present law contains the same provisions. Act 1893, c. 295.

[287] Westover v. Ætna L. I. Co., 99 N. Y., 56; Loder v. Whelpley, 111 N. Y., 239; Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y., 77. Staunton v. Parker, 19 Hun, 55, is thus overruled.

[288] See In matter of Freeman, 46 Hun, 548 (N. Y. Supr. Ct., G. T.,1887).

See Adrereno v. Mut. Res. F. L. I. Co. (U. S. C. C. Mich.), 34 Fed. Rep., 870.

[289] Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y., 77.

[290] Masonic Mut. Ben. Assn. v. Beck, 77 Ind., 203.

[291] Fraser v. Jennison, 42 Mich., 206.

[292] Groll v. Tower, 85 Mo., 249.

[293] Thompson v. Ish, 99 Mo., 160, distinguishes the New York statute from the Missouri statute; but seems to misinterpret Heuston v. Simpson, 115 Ind., 62, which does not hold that representatives cannot waive, but that they can invoke protection.

[294] State v. Depoister, 25 Pac. Rep., 1000.

[295] Johnson v. Johnson, 14 Wend., 636; Babcock v. People, 15 Hun, 347; Valensin v. Valensin, 14 Pac. Rep., 87 (Supr. Ct. Cal., 1887); cf. In re Hannah, 11 N. Y. St. Rep., 807.

[296] Penn Mut. L. I. Co. v. Wiler, 100 Ind., 92; Allen v. Pub. Adm., 1 Bradf., 221; Edington v. Mut. L. I. Co., 67 N. Y., 185; see Westover v. Ætna L. I. Co., 99 N. Y., 56. Breisenmeister v. Supr. Lodge, etc., 45 N. W. Rep., 977 (Supr. Ct. Mich., 1890).

[297] Penn Mut. L. I. Co. v. Wiler, 100 Ind., 92.

[298] Harris v. Rupel, 14 Ind., 209. See also Carthage T. Co. v. Andrews. 1 N. E. Rep., 364.

[299] Morris v. Morris, 119 Ind., 341.

[300] Scripps v. Foster, 41 Mich., 742.

[301] Mason v. Libbey, 2 Abb. N. C., 137; Mott v. Consumers’ Ice Co., 2 Abb. N. C., 143.

[302] Territory v. Corbett, 3 Mont., 50.

[303] People v. Stout, 3 Park Cr. Rep., 670 (N. Y., Oy. and Ter., 1858).

[304] Johnson v. Johnson, 14 Wend., 636 (overruling s. c., 4 Paige, 460); Breisenmeister v. Supreme Lodge, etc., 45 N. W. Rep., 977 (Supr. Ct. Mich., 1890).

[305] Valensin v. Valensin, 14 Pac. Rep., 87 (Supr. Ct. Cal., 1887).

[306] N. Y. Code Civ. Pro., s. 2, 618.

[307] Hoyt v. Hoyt, 9 N. Y. St. Rep., 731 (N. Y. Supr. Ct., G. T.), affirmed 112 N. Y., 493.

[308] Hoyt v. Hoyt, 9 N. Y. St. Rep., 731 (N. Y. Supr. Ct., G. T.).

[309] Van Valkenburg v. Van Valkenburg, 90 Ind., 433.

[310] Dilleber v. Home L. I. Co., 69 N. Y., 256.

[311] Loder v. Whelpley, 111 N. Y., 29.

[312] Supra, p. 96.

[313] Valensin v. Valensin, 14 Pac. Rep., 87 (Supr. Ct. Cal., 1887).

[314] Masonic Mut. Ben. Assn. v. Beck, 77 Ind., 203.

[315] Dreier v. Continental L. I. Co., 24 Fed. Rep., 670; cf. Breisenmeister v. Supr. Lodge, etc., 45 N. W. Rep., 977 (Supr. Ct. Mich., 1890).

[316] Penn Mut. L. I. Co. v. Wiler, 100 Ind., 92.

[317] Williams v. Johnson, 112 Ind., 273.

[318] Ætna L. I. Co. v. Denning, 123 Ind., 390.

[319] Lane v. Boicourt, 27 N. E. Rep., 1111.

[320] McConnell v. City of Osage, 45 N. W. Rep., 550.

[321] Campau v. North, 39 Mich., 606.

[322] Dolton v. Albion, 24 N. W. Rep., 786.

[323] Carrington v. St. Louis, 89 Mo., 208; Squires v. Chillicothe, 89 Mo., 226; Thompson v. Ish, 99 Mo., 160.

[324] Mellor v. Mo. Pac. Ry. Co., 14 S. W. Rep., 758; 16 S. W. Rep., 849.

[325] Adrereno v. Mut. Res. F. L. I. Co., 34 Fed. Rep., 870.

[326] State v. Depoister, 25 Pac. Rep., 1000; but see dissenting opinion of Bigelow, J.; see also McKinney v. Grand St. R. R. Co., 104 N. Y., 352.

[327] Edington v. Mut. L. I. Co., 5 Hun, 1 (reversed in part by Edington v. Mut. L. I. Co., 67 N. Y., 185, but affirmed on this point).

[328] Cahen v. Continental L. I. Co., 41 N. Y. Super., 296 (overruled on another point but affirmed on this in 69 N. Y., 300).

[329] Jones v. Brooklyn, B. & W. E. Ry. Co., 3 N. Y. Supp., 253.

[330] Grattan v. Metrop. L. I. Co., 92 N. Y., 274.

[331] McKinney v. Grand St. R. R. Co., 104 N. Y., 352; see criticism of this case in Breisenmeister v. Supr. Lodge, 45 N. W. Rep., 977 (Supr. Ct. of Mich., 1890). See also Mason v. Libbey, 2 Abb. N. C., 137; see unanswered queries on similar points in People v. Schuyler, 106 N. Y., 298.

[332] See In re Freeman, 46 Hun, 458, in which a will was admitted to probate on the concurrence of Learned, J., who held that the relation of physician and surgeon was not established, and Landon, J., who held that the request to sign constituted a waiver; Williams, J., dissenting, on the ground that the relation was established in the case, and the waiver could not be assumed without proof of the patient’s mental capacity to comprehend the waiver; that it was not proper to assume testator’s competency to waive in order to enable the witness to testify that the patient was competent to make a will.

On the analogous case of an attorney as witness to a will, see Matter of Coleman. 111 N. Y., 220; and N. Y. Code Civ. Pro., s. 836, as amended Act 1893, c. 295.

[333] Record v. Village of Saratoga Springs, 46 Hun, 448 (Supr. Ct., Gen. T., N. Y.). See also Hope v. Troy and Lansingburg R. R. Co., 40 Hun, 438; Jones v. B., B. & W. E. R. R. Co., 3 N. Y. Supp., 253.

[334] Supra, p. 113, note 7.