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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 189 Numerous objections were made upon the trial, to the rulings of the judge, in regard to the admission of evidence, and these decisions are properly the first subject for consideration. It is claimed that the court erred in overruling the objection of the defendant to the admission of the several policies of insurance, without the applications upon which they were founded and which it is insisted were the basis of and formed a part and parcel of the same. Each of the policies recites that in consideration of the representations made on the application for the same, the insurance is made, but it does not make the application a part thereof or in any other way or manner refer to the application. It is of itself a complete contract without the application and so far as that may be considered as material in affecting or changing its true import, it would more properly belong to the defendant to introduce it in evidence. It is true it is stated in each of the applications, that it is agreed that the particulars required from persons proposing to effect insurances shall form a part of the contract with the company; but as no reference whatever is made to the application in either of the policies, and it is not required to make a complete contract, or to explain the meaning of the same, and as the application properly belonged to and was left in the possession of the company for its benefit, no good reason is apparent why the plaintiff should introduce it as a portion of his testimony. *Page 192 Neither of them constitute a part of the instruments upon which the action was brought, and the rule that a portion of a writing cannot be received as evidence while a part is withheld is not applicable when the policy itself does not show affirmatively that the application for insurance constituted a part of it. But even although the applications were originally required to be introduced in evidence by the plaintiff, if any error was committed in this respect it was waived by the subsequent introduction of the same by the defendant, and the exception was thus neutralized. (Rich v. Rich, 16 Wend., 666.)
It is also urged that there was error upon the trial in excluding the declarations of the assured as to the condition of his health, made at various times, and to different persons. One of the offers made was an application of the assured to the Ætna Life Insurance Company for an insurance upon his life, dated May 17, 1867, in which was contained certain answers, statements and representations as to his health, physical condition and other subjects, upon which he made answers in the applications that, before the policies mentioned in the complaint were issued, he was afflicted with certain diseases, contrary to the representations made in the applications presented to the defendant, and that the application to the Ætna Life Insurance Company shows this. The others were the declarations and admissions, which he made as to his diseases and physical condition, to the effect that he was afflicted with some of the diseases referred to in the applications, and was of unsound health. Most of these declarations embraced a period some time prior to the issuing of the policies, and some of them extended beyond that period of time. The various decisions in regard to these statements and declarations may all properly be considered together. The object of the evidence offered was to establish the defence set up, that there was a breach of warranty, by proving the existence of diseases which he had denied he was afflicted with, in his answers to the applications made to the defendant. The action here was brought by an assignee of the policies, and the rule appears *Page 193 to be well settled in this State that the declarations of the assignor are not admissible against the assignee. This rule has been applied to the holder of a negotiable promissory note (Paige v. Cagwin, 7 Hill., 361), and the assignee of a mortgage. (Booth v. Sweezy, 8 N.Y., 276; Foster v. Bears, 21 id., 247; Schenck v. Warner, 37 Barb., 258.) It is also held that the admissions of a party insured, made after the plaintiff obtained the policy, as to his habits, are not competent. (Rawls v. The Am. Mut. Life Ins. Co.,27 N.Y., 282.) The cases cited do not decide the precise point here raised, but we think it is fully considered in a recent decision of this court, in the case of Swift v. The MassachusettsMutual Life Ins. Co. (63 N.Y., 186). In that case proof was offered of statements made by the insured prior to the insurance, and "in immediate reference to his acts, and to facts in his then bodily condition." One of the grounds of the defence was, that the insured concealed the material fact that he had a scrofulous complaint. There was proof to show that the assured was lame, that members of his family had died of scrofula, and of its tendency to become hereditary, and also tending to show that he had this disease before and at the time when he died. The declarations were offered in connection with these facts, and it was held to be a reasonable and conclusive way of showing a person's knowledge of his bodily condition, to prove declarations concerning it, concurrent with some fact or act in relation thereto, and that when declarations are made, not too long before the application and examination, and when a part of the resgestæ of some act or fact, exhibiting a condition of health which they legitimately tend to explain, they are admissible to show knowledge in the insured of his physical condition. The authorities bearing upon the question presented were discussed and examined, and a review of them is not now required. It is sufficient to say that, within the cases to which reference is made in the case last cited, as well as the principle there laid down, the testimony was not admissible, and was properly excluded. No act of the insured *Page 194 was offered in evidence, but mere declarations alone, without any fact which established his condition of health, or which constituted a part of the res gestæ. This case bears no analogy to that last cited, and within the latter the ruling here can be upheld.
The testimony of the physicians, offered upon the trial, we also think was properly rejected, for the reason that the information asked for was obtained by the several physicians while attending the insured, as a patient, in a professional character, and was therefore privileged within the provision of a statute of this State. (2 R.S., 406, § 73.) The statute is very explicit in forbidding a physician from disclosing any information received by him which is necessary to enable him to prescribe for a patient under his charge. It is a just and useful enactment, introduced to give protection to those who were in charge of physicians from the secrets disclosed to enable them properly to prescribe for diseases of the patient. To open the door to the disclosure of secrets revealed on the sick bed, or when consulting a physician, would destroy confidence between the physician and the patient, and, it is easy to see, might tend very much to prevent the advantages and benefits which flow from this confidential relationship. The point made that there was no evidence that the information asked for was essential to enable the physician to prescribe is not well taken, as it must be assumed from the relationship existing that the information would not have been imparted except for the purpose of aiding the physician in prescribing for the patient. Aside, however, from this, the statute in question, being remedial, should receive a liberal interpretation, and not be restricted by any technical rule. When it speaks of information it means not only communications received from the lips of the patient but such knowledge as may be acquired from the patient himself, from the statement of others who may surround him at the time, or from observation of his appearance and symptoms. Even if the patient could not speak, or his mental powers were so affected that he could not accurately state the nature of his disease, the *Page 195 astute medical observer would readily comprehend his condition. Information thus acquired is clearly within the scope and meaning of the statute. None of the cases cited by the appellant's counsel are in conflict with the interpretation given. InKendall v. Gray (2 Hilt. 300), the judge, in his remarks as to the general rule of evidence on the subject, gives full force to the statute, and applies it to physicians while attending patients professionally. The evidence there offered also was not from the physician, and the communication does not appear to have been made the basis of a prescription, and it was held to be competent. In Hewit v. Prince (21 Wend., 79), it was held that a physician who had been consulted by the defendant as to the means of procuring an abortion was not privileged from testifying. This is not a case in point, and the decision was placed upon the ground that it was doubtful whether the communication to the physician could be considered as made while consulting him professionally, and that the information given was not essential to enable him to prescribe for the patient. Neither of these cases sustain the doctrine contended for by the appellant's counsel.
It is also urged that as to Dr. Carpenter there was a covenant that he was competent and empowered to give information as to the state of health of the insured, and as to other matters, and it was competent for the insured to waive the privilege, and he did so waive it as to Carpenter. He was the medical referee for the purpose of answering inquiries as to the condition of health of the insured, with a view of enabling the defendant to determine the accuracy of his statements in the applications. The offer of evidence made in connection with the testimony of Dr. Carpenter was general in its character, embracing all the physicians who had attended and prescribed for the insured, and not being restricted to proof from him as a medical examiner the question does not arise whether it would have been competent if made in that qualified form.
There is no ground for claiming that the right of objecting *Page 196 to the disclosure of a privileged communication is strictly personal to the party making it, or to his personal representatives, and that it cannot be available to a third party. No valid reason is shown why an assignee does not stand in the same position in this respect as the original party, and the decease of the latter cannot affect the right of the former to assert this privilege. The authorities cited to uphold a contrary doctrine do not go to the extent claimed with the single exception, perhaps, of Allen v. The Public Administrator (1 Brad., 221), where the question presented was decided as apparently arising during the progress of the hearing. It is subsequently reported at page 378 of the same volume where the will was admitted to probate, and although the case was heard in the Court of Appeals, it does not appear that the point first decided was considered or determined. How far a distinction may be held to exist where the question arises upon the probate of a will and a case where an assignee has acquired a right, it is not necessary to determine at this time, but the general rule is well settled that the protection which the law gives to communications made in professional confidence does not cease upon the death of the party. The seal which the law fixes upon such communications remains unless removed by the party himself or by his legal representative. (1 Greenl. Ev., § 243.)
It is also urged that section 390 of the Code, by virtue of which a party to an action may examine the adverse party as a witness in the same manner as other witnesses may be examined, abrogates the privilege; and as it would have been competent, if the applicant had been living, to have examined him as a witness no privilege can be interposed by reason of his death. Some cases are cited to sustain this position which have reference to the relationship between attorneys and their clients while both are alive, and the effect of the section cited upon the same. It is not necessary to determine whether these decisions can be upheld as these cases present somewhat of a different question. But even if there be any valid ground for holding that while the parties are alive the Code sweeps *Page 197 away the common law rule established in the interest of justice and on grounds of public policy that communications made confidentially between an attorney and his client are privileged and should be protected, it by no means necessarily follows that the positive enactment of a statute which established the same rule which previously had no existence in reference to the relationship existing between the physician and his patient is to be regarded as nugatory. The section of the Code and the statute referred to are in entire harmony, and as a repeal by implication is not to be encouraged each of them can be enforced without any inconsistency. It is not to be assumed that the legislature intended to repeal a law which was enacted to prevent the disclosure of information acquired by medical men in a professional capacity and to remove what was previously regarded as a reproach upon the administration of justice without some clear and emphatic indication to that effect. (People v.Street, 3 Park. Cr., 673; 3 R.S. [2d ed.], 737.) This is wanting and we think that the statute remains in full force and has not been affected by the provision of the Code cited.
There was no error in the refusal of the judge to dismiss the complaint or to direct a verdict in favor of the defendant. A more serious question arises as to the refusal of the judge to allow the defendant to go to the jury as requested or to present any questions to the jury. On each of the applications for insurance, the applicant was asked the following questions: "How long since you were attended by any physician? For what diseases? Give name and residence of your usual medical attendant?" On the first and second applications he answered "Dr. Carpenter has known me two years." Upon the third application he answered "have none; only consulted Dr. C.H. Carpenter now and then for slight ailments and taken his prescriptions; C.H. Carpenter, Geneva, has known me three years." In regard to the answers made to the questions put upon the first and second applications it is quite obvious that the answers were not in response to the same, but as no objection was taken on this account, and no further *Page 198 answer required at the time, it is fair to assume that it was satisfactory and there was a waiver of any additional answer. (Fitch v. An. P. Life Ins. Co., 59 N.Y., 573; Rawls v. Am.L. Ins. Co., 27 id., 283.) As to the answers made to the question put upon the third application, the statement made that he had only consulted Dr. Carpenter was perhaps calculated to convey the impression that he had no other physician, and it is by no means entirely clear that such was the fact. It is proven that he consulted Dr. Eastman in 1863, who made prescriptions for him, then Dr. Avery also prepared medicines for him for a week or ten days after he left Dr. Eastman in 1864 or 1866, and also treated him in 1868. Dr. Carpenter testifies that he treated him in 1866 and 1870. He cannot state as to 1868, although he had previously sworn that he had given him prescriptions during that year. Dr. Picot testifies that he prescribed for the insured in 1868. He gave him prescriptions to be used at that time, but did not attend him in any sickness, and he gave him prescriptions once in a while for two years and a-half afterwards. These were a month or two apart and given on the street. It is apparent that the testimony is not very explicit as to the correctness of the answer, and as the evidence stood it was a fair question for the jury to determine, whether the assured could be charged with an omission to give such information as the interrogatories were intended to elicit, as constituted a fraudulent suppression of the truth and vitiated the policy. Under the circumstances the defendant's counsel should have been allowed to go to the jury upon the requests made as to the suppression and fraud upon the third application in respect to the employment of a physician.
For the error in refusing to grant this request of the defendant's counsel the judgment must be reversed and a new trial granted, with costs to abide the event.
All concur; CHURCH, Ch. J., in result.
FOLGER and RAPALLO, JJ., not sitting.
Judgment reversed. *Page 199