[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 203 I think this judgment should be reversed, and that a new trial should be had, for the error in excluding the testimony of the witness, Moorhead, when asked by defendant's counsel to state "what he, (the plaintiff), said, if anything, as to how this accident happened." Moorhead was a surgeon, attached to the J. Hood Wright Hospital, and was in charge of the ambulance, which was summoned to convey the plaintiff, after meeting with his accident. It will be observed that the question called for no information, which was acquired by the surgeon to enable him to act as such. It called for evidence, merely, of what had preceded, and had caused, the accident, according to the plaintiff's knowledge. Section 834 of the Code of Civil Procedure, whose privilege has been extended to cover this question, applies, by its language, to cases where information has been acquired by a physician, or a surgeon, while "attending a patient in a professional capacity, and which was necessary toenable him to act in that capacity." We may, readily, admit that Dr. Moorhead acquired the information, which the question called for, while *Page 204 attending the plaintiff in a professional capacity, and, still, we would be far from the point of the legislative purpose in enacting the section of the Code. That was that the information should be of a character necessary to enable Dr. Moorhead, or the hospital staff, to act professionally upon the case. As it was observed in Edington v. Ætna Life Ins. Co., (77 N.Y. 564), "it is not sufficient to authorize the exclusion that the physician acquired the information while attending the patient; but it must be the necessary information mentioned." The object of the statute, as we are bound to presume, was the accomplishment of a just and salutary purpose; which was that the relations between physician and patient should be protected against public disclosure, so that the patient might unbosom himself, freely, to his medical adviser and, thus, receive the full benefit of his professional skill. Surely, it could not have been intended that any truthful version of a narrative of the events leading to an accidental injury should be excluded and that was all this question called for, as it had come from the sufferer's lips, and when fresh in his recollection. It is rather more consonant with the requirements of justice, that no witness should be prevented from giving such evidence. The burden was upon the plaintiff, in seeking to exclude this evidence of Dr. Moorhead, to bring the case within the provision of the statute, (People v. Koerner, 154 N.Y. 355), and he did not do so. It was proper to exclude testimony as to any information acquired, which was of a nature to enable a surgeon to treat the plaintiff; but it is unreasonable to say that information of how the accident happened was such as must, or might, have affected the surgical treatment required. Surely, there must be a line, which reason indicates as that where the statutory inhibition ceases. The plaintiff lost his leg, by being run over by the car, and the question of defendant's legal liability was a narrow one, as presented by the trial court, in view of its assumption that the plaintiff was guilty of contributory negligence; hence, all the light, possible to exhibit how the injury was occasioned, should have been permitted upon the case. It seems to me that the exclusion of *Page 205 this evidence was an application of the Code provision, beyond all legitimate and reasonable limits, and was not in accord with the recent decision of this court in Griffiths v. TheMetropolitan Street Railway Company (171 N.Y. 106).
The judgment should be reversed and a new trial granted, with costs to abide the event.