The defense interposed was a breach of warranty by the insured, in that the representations contained in his application to the effect that no brother of his had ever had consumption, and that the insured had never had bronchitis or dyspepsia, or been attended by any physician therefor were false and untrue.
On the trial the defendant called as a witness James T. Sweetman, who was a practicing physician and acquainted with the insured in his lifetime. He testified that he was one of the attending physicians during the last illness of the insured; that he knew him a little over two years before his *Page 15 death, and that he attended him professionally previous to his last illness, to the best of his knowledge, in January and in April, 1893. The defendant then asked the witness the following question: "What was his physical condition in January, 1893, and April, 1893, when you attended him?" To this the plaintiff objected upon the ground that it called for a confidential communication which the physician could not disclose, was within the inhibition of section 834 of the Code of Civil Procedure, and improper and immaterial. The plaintiff's counsel then stated that on behalf of the personal representatives of the decedent he claimed the privilege given by section 834 of the Code of Civil Procedure, and expressly refused to waive the provisions thereof. The court overruled the plaintiff's objections upon the ground that an express waiver of the provisions of section 834 was contained in the application for the policy, and that such waiver was effective and binding upon the plaintiff and the personal representatives of the decedent. To this ruling the plaintiff excepted. The witness answered that the decedent was suffering from acute bronchitis when he saw him in January, 1893, and that it was commonly called a very acute and very severe case. The witness was then asked if he prescribed for Mr. Harris in April, 1893, and for what disease. This was objected to as immaterial and calling for a confidential communication, improper and not tending to show a violation of any of the warranties in the application or policy. This objection was overruled, and the plaintiff excepted. The witness then testified: "Harris came to me in April, 1893, and required my services, and I prescribed for him for dyspepsia." Under the same objections and ruling, the witness was also permitted to testify that he attended the insured during his last illness, and that he was suffering from phthisis or consumption. This answer was permitted after the witness had testified that whatever knowledge he obtained was necessary for him to prescribe for the patient.
Section 834 of the Code of Civil Procedure provides: "A person, duly authorized to practice physic or surgery, shall *Page 16 not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity." That the evidence of Dr. Sweetman, which was admitted under the objection and exception of the plaintiff, was plainly within the inhibition of section 834, is not and cannot be successfully denied. But the defendant insists, as the courts below have held, that the provisions of section 836 of the Code permitted the decedent to waive that privilege, and that it was expressly waived in the application signed by him. There is no claim of any other waiver. Section 836, as it stood anterior to 1891, provided: "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 the client." If, at the time this application was made, and when the case was tried, this section had not been amended, there would be no doubt as to the sufficiency and effect of this waiver. (Foley v. RoyalArcanum, 151 N.Y. 196.)
But, in 1891, section 836 was amended to read as follows: "The last three sections apply to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. But a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will." It is obvious that the amendment of section 836 has very essentially changed its effect and operation as applicable to the question under consideration. While under that section, before its amendment, the provisions *Page 17 relating to a waiver were general, and the only requirement was that it should be an express waiver without regard to time or place, still that was changed by the amendment of 1891. While this section was further amended in 1893, yet that amendment in no way affects the question before us, and it is not referred to in detail, as a consideration of its added provisions would lead to confusion rather than clearness in stating and deciding the only question involved. The statute as it now stands, in positive and express terms, requires the waiver to be made upon or at the time of the trial or examination. Under the statute as amended, no one except the personal representatives of the deceased patient can waive the provisions of section 834, and it can be waived by them only upon the trial or examination where the evidence is offered or received. The apparent purpose of that amendment was to protect parties, their representatives and successors from waivers which should be inadvertently or improperly obtained previously to the trial of an action or examination of the witness. That in many cases injustice had resulted from such waivers having been previously obtained by a species of fraud or duress, was doubtless the reason which induced the legislature to adopt this amendment, requiring the waiver to be made in the presence and under the supervision of the court before which the trial or examination was had. Whatever the purpose may have been, the plain effect of this statute was to limit as to the time and place when and where such waiver should be made to be effective in exempting the testimony of such a witness from the inhibition of section 834. The waiver relied upon by the defendant was made in 1893, while the statute, as amended, was in full force and effect. Hence, it is obvious that the waiver in the application was insufficient under the statute as it then stood to justify the admission of the evidence of Dr. Sweetman, and the court erred in overruling the plaintiff's objections and admitting that proof. These rulings were clearly erroneous and constituted substantial errors for which the judgment herein must be reversed.
Several other interesting questions were discussed upon the *Page 18 argument and in the briefs of counsel, but as the judgment must be reversed for the reasons already stated, we regard it as unnecessary to consider them, as they may be avoided upon a retrial of the case.
The judgment and order should be reversed and a new trial granted, with costs to abide the event.
PARKER, Ch. J., GRAY, BARTLETT, VANN, CULLEN and WERNER, JJ., concur.
Judgment and order reversed, etc.