[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 80 This action was brought to recover damages for a personal injury.
In July, 1885, the plaintiff was a passenger upon the defendant's express train, and was seated in one of the sleeping cars. When the train was near Oxford, in the county of Orange, it came into collision with a partially displaced door of a freight car, going in the opposite direction, which broke the windows and the partition between them at which the plaintiff was sitting. He was struck by the broken pieces of glass and timber and so injured that the muscles of the legs contracted in such a way as to draw both legs up against his body and render him helpless.
No question is made but that there was sufficient evidence to take the case to the jury upon the main elements of the cause of action. It is claimed however that errors were committed in the rejection and exclusion of evidence which entitles the defendant to a new trial.
The plaintiff and his wife gave testimony to the effect that he was dependent upon his earnings for the support of himself and wife. This was given under the objection and exception of the defendant. As bearing upon the question of damages we think this testimony was incompetent. The rule of recovery is, compensation for the injuries sustained. Pain and suffering, loss of time, the expense of medical, surgical and other attendance, and the diminished capacity to earn in the future are all proper elements to be taken into consideration by the jury in determining the amount of the compensation *Page 82 that should be awarded. But in this regard the law is not a respecter of persons. It makes no distinction between the rich or the poor, and a jury has no right to consider that element in determining the amount of the pecuniary compensation.
In the case of Myers v. Malcolm, (6 Hill, 292, 296), NELSON, Ch. J., in delivering the opinion of the court, says: "A new trial must be granted in this case for the error of the judge in admitting evidence of the wealth of one of the defendants. This was clearly inadmissible, and it is impossible to say what effect it may have had upon the verdict."
In the case of Moody v. Osgood (50 Barb. 628), BARNARD, P.J., says: "Damages in these cases are not to be estimated by or proportioned to the wealth of the defendant. Indirect proof of the wealth of the defendant is just as admissible as direct proof and for the same reasons."
To the same effect are the decisions of the Supreme Court of the United States, and the courts of other states. (PennsylvaniaCo. v. Roy, 102 U.S. 451, 459; Shaw v. A., W.R.R. Co., 8 Gray, 45; C. N.R. Co. v. Bayfield, 37 Mich. 205; Stockton v. Fry, 4 Gill, 406; 2 Thomp. on Neg. 1263; Abb. Tr. Ev. 601; Wood on Railway Law, 1242.)
It does not appear to us that this evidence was competent as bearing upon the earning capacity of the plaintiff prior to the injury. It is true that the jury heard the plaintiff's condition described and saw his wife in the court room, but there was no evidence before them showing the style or manner in which they lived or the amount that was annually expended in their support, and this could not very well be determined by the jury by a mere inspection of the plaintiff's wife in the court room. The plaintiff had already stated the character and nature of his business before his injury and subsequently stated the amount of salary that he received. His earning capacity was thus fully made to appear by direct and competent evidence. Nor are we inclined to sustain the admissibility of this testimony, upon the theory that it was competent as tending to prove that the plaintiff after the accident was unable to perform any labor. There was but little dispute in *Page 83 reference to his actual condition. It was made to appear from the testimony of eye witnesses and expert physicians who had examined and satisfied themselves as to his condition. We are aware that in the case of Caldwell v. Murphy (11 N.Y. 416), the court there sustained this character of testimony upon the theory that having a family dependent upon him for support and being without means of support, except his labor and the charity of his friends, his omission to employ himself had a bearing upon the extent to which he had been disabled. But we regard that case as carrying the rule to the outside limit, and do not feel justified in following it in this case. We are thus brought to the inquiry as to whether this evidence was competent for the purpose of showing that the plaintiff used ordinary care to cure and restore himself; that he acted in good faith, and resorted to such means as were reasonably within his reach to make his damages as small as possible. It doubtless would be in case any such issue was tendered by the pleadings or raised by the testimony. A person who receives an injury through the carelessness of another, is bound to act in good faith and to resort to such means and adopt such methods as are reasonably within his reach to cure and restore himself. (Lyons v. E.R. Co., 57 N.Y. 489.)
The answer denied any knowledge or information sufficient to form a belief as to the extent and seriousness of the injury complained of. The first witness sworn upon the trial on behalf of the plaintiff was Jonathan Allen, the plaintiff's father-in-law, at whose residence he had been since the injury. He testified as to the condition of the plaintiff upon his arrival and on down to the time of the trial, and gave the names of the doctors that had treated him. Upon the cross-examination he was asked if the plaintiff at any time since the injury had been under the charge of any physician especially skilled in this class of cases, and he answered that he had not any more than those he had mentioned, and it appeared that they were ordinary practioners in the country villages of Andover and Alfred. It was after this testimony was given that the evidence objected to was called out. We do not understand for *Page 84 what purpose the defendant called for this testimony unless it was his purpose to show that the plaintiff had not had proper care and treatment. The physicians who testified on behalf of the plaintiff were cross-examined by the defendant's counsel and made to admit that they had never seen a case of this kind before, and consequently had no experience in treating such a case. It further appeared that there was an eminent physician in New York, by the name of Dr. Seguin, who was skilled in the treatment of diseases of this character. It was undoubtedly proper for the defendant to cross-examine the plaintiff's physicians as to their skill and experience in treating diseases of this character, as bearing upon the weight which should be given by the jury to the opinions expressed by them in reference to the durability of the disease, and that that evidence did not necessarily tender the issue as to whether the plaintiff had made use of the means reasonably within his reach to cure himself. But no such claim can be made as to the testimony called out from the witness Allen. He was not a physician and had not been called upon to express any opinion as an expert. The defendant had previously shown by the testimony of this witness that Dr. Seguin was especially skilled in that class of cases, and that he had not been called to treat the plaintiff, thus giving point and character to the testimony that the plaintiff had not been treated by any one especially skilled in such cases. It appears to us that this evidence was sufficient to raise such an issue and that the trial court was justified in admitting evidence that would tend to rebut and disprove such claim and that this was done by showing that he was poor and dependent upon his earnings, and was consequently not able to employ or pay a skilled physician to visit him from the city of New York. Upon this theory we are of the opinion that the evidence objected to was permissible.
Dr. Shepard was called as a witness for the plaintiff and asked to describe to the jury the condition in which he found the plaintiff on the morning after the accident, and what his condition had been from that time until the present. This *Page 85 was objected to upon the ground that the question comes within the prohibition of the Code as a question of privilege. The counsel for the plaintiff conducting the trial then stated that as his attorney he waived the privilege. The objection was then overruled and an exception was taken by the defendant, and the doctor proceeded to state the condition of the plaintiff.
The Code of Civil Procedure provides that a clergyman or, other minister of any religion, shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline, enjoined by the rules or practice of the religious body to which he belongs. (§ 833.) And that a person, duly authorized to practice physic or surgery, shall not be allowed to disclose any informational which he acquired in attending a patient, in professional capacity, and which was necessary to enable him to act in that capacity. (§ 834.) And that an attorney or counselor at law shall not be allowed to disclose a communication, made by his client to him, or his advice thereon, in the course of his professional employment. (§ 835.) Section 836 then provides: "The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient or client." So that under the provisions of the latter section there must be an express waiver by the patient in order to make the testimony competent. The question then is, can such express waiver be made by an attorney of a person in his lifetime. The death of the client would undoubtedly terminate such agency and no one would then be permitted to speak for him, and the prohibition provided for by the Code would then doubtless continue forever. (Westover v. Ætna Life Insurance Co.,99 N.Y. 56.)
But although dead he may leave behind him evidence which indicates an express intention to waive the privilege; as for instance, where he requests his attorney to sign the attestation clause of his will, he by so doing expressly waives the provisions of the statutes and makes him a competent witness to testify as to the circumstances attending its execution, including *Page 86 the mental condition of the testator at the time. (In the Matterof Coleman, 111 N.Y. 220.)
RUGER, Ch. J., in delivering the opinion of the court in that case, says: "It cannot be doubted that if a client in his lifetime should call his attorney as a witness in a legal proceeding to testify to transactions taking place between himself and his attorney while occupying the relation of attorney and client, such act would be held to constitute an express waiver of the seal of secrecy imposed by the statute, and, can it be any less so when the client has left written or oral evidence of his desire that his attorney should testify to facts learned through his professional relations upon a judicial proceeding to take place after his death? We think not." If the calling of an attorney as a witness in behalf of his client is an express waiver of the seal of secrecy imposed by the statute, is not also the calling of a physician as a witness by his patient such a waiver? It is true that these remarks of the chief judge may not have been necessary in the decision of that case and may have been made by way of illustration, still the force of the argument is such as to commend itself to us as a correct and just interpretation of the statute. As we have seen, the physician was not only called as a witness on behalf of the patient, but his counsel who was conducting the trial in his behalf in open court expressly waived the prohibition of the statute. The attorney in conducting the trial stood in the place and stead of his client, representing him as his duly authorized agent. All that properly related to the conduct of the trial devolved upon the attorney. It was for him to determine what should or should not be presented as evidence, and it appears to us that he must be deemed to so far represent the client as to be authorized in his behalf to waive the privilege and remove the seal of secrecy to the evidence that he in his judgment saw fit to offer for and on behalf of his client. The power of an attorney to represent his client was considered in the case of Mark v. City of Buffalo (87 N.Y. 184). In that case the attorneys of the parties had agreed upon the amount that should be paid to the referees before whom the *Page 87 case was tried. The Code fixed the foes of referees at six dollars for each day spent in the business of the reference, unless at or before the commencement of the trial a different rate of compensation is fixed by the consent of the parties. The parties had not agreed upon a greater rate than that provided for by the statute, but their attorneys had, and it was held that under their employment they had the power to so agree and that their clients were bound by their agreement.
Dr. Lewis, another witness sworn on behalf of the plaintiff, was asked to state what in his opinion will be the result of the disease in the natural and ordinary course. This was objected to on the ground that there was too much speculation connected with it. The objection was overruled and an exception taken, and the witness gave it as his opinion that the patient would never be any better, and that he never would be able to straighten his limbs. He was then asked to state the length of time that the plaintiff may live in the natural and ordinary course of events. This was objected to and the court ruled that he might answer if he could speak with reasonable certainty in reference thereto. The doctor answered that he could only give the probability from the history of other similar cases, and this he was permitted to do under the objection and exception of the defendant. It will be observed that as to the latter answer, the answer was as to the probability, and that in the former question he was called upon to express his opinion in reference to the result of the disease in the natural and ordinary course. It is claimed that this evidence is objectionable under the case of Strohm v. NewYork, Lake Erie and Western Railroad Co., (96 N.Y. 305.) In that case the question was as to what might or may develop, and was not as to what would probably or was reasonably certain to develop. This question was considered in the case of Griswold v. New York Central and Hudson River Railroad Co. (44 Hun, 236;115 N.Y. 61), and was again considered by us in the case ofMcClain v. Brooklyn City Railroad Co. (116 N.Y. 459), and under the rule as laid down in these cases we consider the evidence competent. *Page 88
During the trial, the plaintiffs counsel offered in evidence a photograph of the plaintiff showing the manner in which his limbs were contracted. This was permitted by the court under the objection of the defendant. Before it was done, however, one of the doctors testified that the photograph was taken in his presence and that it correctly represented the condition of the limbs. The only materiality of this evidence was to show the manner in which the limbs of the plaintiff were contracted. In this regard, the testimony of the physician is that it was a correct representation of them. This made it competent as a map or diagram. (Archer v. New York, New Haven Hartford RailroadCo., 106 N.Y. 589-603; Wilcox v. Wilcox, 46 Hun, 32-38;Ruloff v. People, 45 N.Y. 213-224; Hynes v. McDermott,82 N.Y. 50.)
The judgment should be affirmed with costs.