We think under the authorities that the communications made by the plaintiff to the physician were privileged and that there had been no waiver even if the publication of the article and the public exhibitions were, as testified by the physician, though denied by the plaintiff, with the latter’s full consent. On this subject it was said in the case of Holden v. Metropolitan Life Ins. Co. (165 N. Y. 17): “ The statute (Secs. 834 and 836 of the Code of Civil Procedure) 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. * * * 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 * * * 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.”
There being no waiver “on such trial or examination,” as provided by section 836 of the Code, but, on the contrary, an objection made to the physician’s violating the privilege, the ruling admitting the testimony was clearly erroneous.
It is claimed, however, that such ruling was harmless because the jury found that the defendant was not responsible for the injuries, and, as there was no liability of the defendant, the introduction of the evidence relating to the extent of the injuries could, at most, affect only the credibility of the plaintiff. This, it seems to us, is begging the whole question, for it appears that there was a sharp conflict as to the manner in which the accident occurred. *30Although we have not before, us all the testimony given on the trial; the record being in the form of a bill of exceptions, there is, as was proper in- such a record, a summarized statement that “ the plaintiff ' * * * testified himself as to the manner in which the accident happened,” and that there was, on this subject,’ “ a sharp conflict.”
It is not, therefore, a strained inference to conclude that the testimony of the plaintiff had a material bearing upon the burden which he had to sustain of showing the defendant’s liability for his injuries; and it is evident that the direct refutation by his physician-of what he had stated concerning his physical condition before the the accident, would tend to discredit his whole case. If upon the extent of his injuries it was shown that he had testified falsely — which was the tendency of the erroneous evidence admitted— then the jury would have the right, if they believed that the plaintiff’s evidence was willfully and knowingly false in one important particular of his case, to disregard his entire evidence; and it would have been the duty of the judge if such request were made, to charge that they were at liberty to do so. It seems to us, therefore, that upon the question of the defendant’s liability, the extent to which the jury would credit the plaintiff’s testimony was most material; and his credibility having been assailed and affected by improper and erroneous evidence, the error committed cannot be regarded as harmless.
We think, therefore, that the judgment appealed from is wrong and should be reversed and a new trial ordered, with costs to the appellant to abide the event.
■ Van Brunt, Pi J., and Laughlin, J., concurred ; Patterson, J.,. dissented.