The action was brought to recover against the defendant, a fraternal, mutual benefit corporation, organized under the acts of the Congress of the United States, *Page 70 upon a certificate of membership issued to Emanuel Meyer; by which it promised to pay, upon his death, to his wife, this plaintiff, the sum of $2,000. The defendant alleged, in defense of the action, that the death of Meyer was the result of suicide; which, within the terms of the agreement of the parties, avoided the certificate. Upon the trial of the issues, the defendant, claiming the affirmative and not questioning plaintiff's preliminary proofs to establish a case under the allegations of her complaint, was allowed to begin with its defense and its evidence was directed towards proving that the beneficiary committed suicide by taking poison. The trial judge submitted to the jury the one question, "whether the deceased committed suicide," and upon their answering "no" to the question, he directed judgment to be entered for the plaintiff. That judgment has been affirmed by the Appellate Division and, upon this appeal, in substance, the general argument of the appellant is that the waiver of the deceased, contained in his application for the insurance certificate, of all provisions of law, then, or thereafter, in force, prohibiting any physician from testifying to any information acquired by attendance upon him, was a part of a contract, which had been validly made in the state of Illinois, and that sections 834 and 836 of the Code of Civil Procedure of this state, under which such testimony is rendered inadmissible, unless the statutory prohibition is waived upon the trial by the personal representatives of the deceased, are inoperative, as being in violation of the provisions of the Federal Constitution, which prohibit legislation in impairment of contracts. The argument, further, is that as to one of the physicians, called upon to testify for the defense, his testimony, certainly, did not come within the statutory prohibition; inasmuch as the necessary relationship of physician and patient did not exist.
With respect to the first of these questions raised by the appellant, whatever other answers might be made to the applicability of the provision of the Federal Constitution relied upon, it is sufficient to say, now, that this contract was consummated in the state of New York and is to be governed, *Page 71 in its enforcement, by the laws of that state. The beneficiary was a resident of this state and there made his application for the insurance. The certificate, issuing upon the application, appears, from its language only, to have been signed by the officers of the defendant at Chicago, in the state of Illinois, on September 20th, 1894; but upon it was printed the following clause: "I hereby accept this certificate of membership subject to all the conditions therein contained," and that had the signature of the applicant, followed by the words, "Dated at New York, this 28th day of September 1894, attest: Louis Riegel, Secretary Section 2179, Endowment Rank, K. of P." By the terms of the certificate, the agreement of the defendant was subject, not only to the conditions subscribed to by the member in his application, but "to the further conditions and agreements hereinafter named," and the clause containing his acceptance, above quoted, was one of those "further agreements." From these terms of the agreements of the parties the only natural conclusion is that the place of the contract was where it was intended, and understood, to be consummated. Its completion depended upon the execution by the member of the further agreement indorsed upon the certificate: namely, to accept it "subject to all the conditions therein contained." The contract was not completed, in the sense that it was binding upon either party to it, until it was delivered in New York after the execution by the member of the further agreement expressing his unqualified acceptance of its conditions. As matter of fact, the promise of the defendant was to pay the insurance moneys to the plaintiff, who resided in New York; a feature giving additional local coloring to the contract. But the sufficient and controlling fact is that, by its terms, it was first to take effect as a binding obligation, when the required agreement on the part of the member was executed by him.
The difficulty in this case, which, in my judgment, entitles the defendant to a new trial in the action, is the exclusion of the evidence of Dr. Bruso, called as a witness for the defendant and asked to state a conversation had with Meyer, the *Page 72 deceased. This witness was a physician, having his office in the city of Buffalo, in this state, near to the Iroquois Hotel. He testified that, in the early morning, one of the bell boys of the hotel came for him and, upon entering one of the rooms, he found a man in the bed, suffering from pain and vomiting. Objection being made to his evidence, which was in the form of a deposition, the court put the question: "Did this doctor treat him." The defendant's counsel replied: "He inserted something hypodermically into the man against his wish." The objection to the testimony was sustained, the defendant excepted and the whole deposition of the witness was excluded, under the previous ruling of the court that sections 834 and 836 of the Code of Civil Procedure applied. From the deposition, thus offered and excluded, it appeared that the witness had a conversation with Meyer, which was narrated, so far as material, as follows: "I asked him what he had been doing and he told me it was none of my damned business, that he didn't want me in there and he wanted me to get out of there. * * * I looked around the room. * * * I found * * * a box of `Rough on Rats' * * * empty. * * * He told me he had taken it * * * because he wanted to die * * * he didn't want to get well * * * he didn't want me to do anything. * * * I prepared a hypodermic injection * * * and stimulated him, so he would not die in the Hotel Iroquois. * * * When I was going to give him the hypodermic, he said `You, (cursing him in foul language), keep away from here. Didn't I tell you before to keep away?' I paid no attention to him and gave him the hypodermic." The witness was, then, asked if he knew what was the cause of the condition of the man and he answered, that it was arsenical poisoning and that the symptoms evidenced it. The deceased was immediately conveyed from the hotel to the hospital; where he died soon afterwards. The evidence of Dr. Bruso was deemed inadmissible under the provisions of section 834 of the Code; which prohibits a physician from disclosing "any information which he acquired in attending a patient, in a *Page 73 professional capacity, and which was necessary to enable him to act in that capacity." The agreement of the insured, contained in his application, which waived for himself, his representatives and beneficiaries, "any and all provisions of law, now or hereafter in force, prohibiting * * * any physician * * * attending me * * * from disclosing, or testifying to, any information acquired thereby" and which expressly consented to such testimony being given in any suit, was held below to be insufficient to meet the requirement of section 836 of the Code, that the provisions of section 834 must be expressly waived upon the trial by the personal representatives of the deceased patient. Such a waiver was refused at this trial. Our recent decision in Holden v. Metropolitan Life Ins. Co., (165 N.Y. 13) justified the ruling below upon the question of the force of the waiver in the insurance contract. Theretofore, it had been the rule to regard such a waiver as a binding part of the contract of insurance and, as such, available to the insurer in any action upon the policy. (Foley v. Royal Arcanum, 151 N.Y. 196. )
But was there disclosed that relationship of physician and patient between the deceased and Dr. Bruso, which made operative the prohibitory provisions of section 834? As the inadmissibility of such testimony is, only, because of the statute, it is quite important that the case should come very clearly within its terms; however liberal the construction, which we should give to an enactment intended to promote the ends of justice. The object of this legislation was to render privileged what communications are made between a physician and his patient; but, obviously, it is essential that it shall appear that the person attended is his patient, in the sense in which such a term is ordinarily understood. In Griffiths v. Metropolitan Street RailwayCompany, (171 N.Y. 106), we, quite lately, had occasion to consider such a question under a state of facts not, essentially, dissimilar to that now before us. In that case the plaintiff brought his action to recover damages for injuries sustained through the negligence of the defendant's servant, a gripman upon one of its *Page 74 cars. The defendant called a physician, as a witness, who was at the scene of the accident, when an ambulance arrived, and who rendered "first aid" to the plaintiff. The witness was, also, an attending physician at the hospital, to which the plaintiff was assisted by him in the ambulance; but he rendered no further services to him while in the hospital. The witness was asked to relate a conversation, which he had with the plaintiff in the hospital, subsequently; but the court sustained an objection to its admissibility under section 834 of the Code and the witness was not allowed to testify to what was said by plaintiff with reference to his sufferings, or to the accident. When the case reached this court, it was held that the exclusion of the physician's evidence was an error; for which the judgment should be reversed and a new trial had. The decision by this court rested upon the ground that the burden upon the plaintiff of showing that the evidence was within the statutory prohibition had not been met and that the facts did not warrant the presumption that the relation of physician and patient existed. The opinion, quite fully, reviewed the cases, illustrating the application of the statutory provision in question, and the rule was distinctly adhered to that, to warrant the application, it must appear that the relation of physician and patient, at the time, existed and that the information sought to be excluded was necessary to enable the physician to act as such. Previous to theGriffiths case that rule had been expressed in People v.Koerner (154 N.Y. 355).
Can we say that the rule applies to such a situation, as that disclosed in this case, any more than it did in Griffiths' case? I think not. It seems to me to be difficult to assert, with any gravity of countenance, at least, with Meyer rejecting the witness' presence and services, and cursing him for his interference, and with the witness' determined efforts to prevent Meyer from dying in the hotel, whose servants had summoned him, that the relation of physician and patient arose, and that the confidential relation existed, which the statute has in view and which, with a tender solicitude for a patient's interests, it is designed to safeguard. *Page 75 The inadmissibility of the testimony of the hospital physicians rests upon a different basis. Both may, reasonably, be said to have been in attendance upon him as a hospital patient; but, in my opinion, the deposition of Dr. Bruso was erroneously excluded and, therefore, I advise the reversal of the judgment.
O'BRIEN, BARTLETT and MARTIN, JJ., concur with VANN, J.; PARKER, Ch. J., concurs with GRAY, J.; WERNER, J., absent.
Judgment affirmed.