(dissenting):
The plaintiff on the 22d of September, 1902, was a passenger in one of the defendant’s cars, and in going from it to the depot, where the car had stopped for .the purpose of permitting her to get off, she tripped and fell, sustaining injuries which she alleges were due to the negligence of the defendant, and to recover damages therefor she brought this action.
Subsequent to the accident she was taken to a hospital, where she was attended by a physician, one Dr. Hanson. After issue had been joined in the action, upon her motion a commission was issued to and the testimony of Dr. Hanson was taken upon written interrogatories. At the trial, however, the commission having been returned, the plaintiff did not read the deposition or any part of it, and after she had rested and the defendant had entered upon its proof it sought to read the answers of the doctor to the direct and cross interrogatories, but the same were excluded upon the objection of plaintiff’s counsel. The objection to the reading of such answers by the defendant was substantially upon the ground that they would'disclose information acquired by the doctor while attending the plaintiff as a physician, and which was, necessary to enable him to act in that capacity, and that the plaintiff had not waived her privilege.of having such information kept secret under sections 834 and 836 of the Code of Civil Procedure. The defendant duly excepted to the ruling of the court excluding these answers.
The answers sought to be read would undoubtedly have disclosed information acquired by the physician while attending the plaintiff in a professional capacity, and which was necessary to enable him to act as such, and the ruling was right in excluding them (Code Civ. Proc. § 834) unless the plaintiff had waived her privilege of having such information kept secret. (Code Civ. Proc.- § 836.) The section last cited provides that the waiver therein provided for must be “ made in open court on the trial of the action or proceeding.” The appellant contends there had been such waiver.
*518I am of the opinion that this contention is well founded. The application for the issuance of the commission was, made in open court. It was for the purpose of jirocuring testimony to be-read upon the trial. The application and the' taking of tlie deposition,
' within the meaning' of section 836 of the Code of Civil Procedure, were part of the trial itself. If I am right in this; then there had . been a waiver in open court upon the trial of the action. The plaintiff, in.asking for the issuance of the.commission, consented that the information acquired by the physician while attending her in his. professional capacity, and which was necessary to enable him to act in that capacity, might he made public, and her consent having been acted upon by the defendant, she was thereafter estopped from claiming the privilege .Which the statute gave her to have such information kept secret. It- was upon her application that the. deposition ' had been taken, and when she made the application' she undoubtedly supposed that his deposition would be in her favor. That, however, was a chance which she took, and when such deposition had been taken, because it was not in her'favor, she conld not preclude the defendant (it-having; been put to. the trouble and expense of obtaining it) from reading the same or so much of it as it desired, provided the part sought to be read was. not subject to the objections provided for in section 911 of the.;0ode of Civil Procedure.
In McKinney v. Grand St., etc., R. R. Co. (104 N. Y. 352) it was; said that after information of a priviléged character has once been divulged in legal proceedings, its further publication cannot, be suppressed. .There, defendant called as a witness a physician and proposed to. prove by him the extent of in juries, sustained by the plaintiff in a collision upon defendant’s railroad.. Upon a previous- trial of the same action the same witnessés had been called'by the plaintiff and required to testify fully as to all.the facts bearing upon her physical condition as affected by the accident. ‘ Upon the second" trial, however, plaintiff objected to the proposed evidence bn the -ground that the information acquired by the physician while attending plaintiff . was privileged and conld not, therefore, be admitted against her without her consent. -The evidence was excluded, and the court, on appeal, reversed the.judgment, and in doing so said: “.The patient cannot use this privilege both as a sword and a shield. *519to waive when it enures to her advantage, and wield when it does not. After its publication no further injury can be inflicted upon the rights and, interests which the statute was intended: to protect and there is no further l-eason for its enforcement. The nature of the information is of such a character that when it is once divulged in legal proceedings it cannot be again hidden or concealed'. It is then open to the consideration of the entire public and the privilege of forbidding its repetition is not.conferred by the statute. The consent having been once given and acted upon, cannot be recalled, and the patient can never be restored to the condition which the statute, from motives of public policy, has sought to protect.”
This case was cited with approval and followed in. Morris v. N. Y., O. & W. R. Co. (148 N. Y. 88), where the court held that when a party who had been attended by "two physicians in their professional capacity' at the same examination or consultation, botli holding professional relations to him, calls one of them as a witness in Ins own behalf, in an action in which the party’s condition as it appeared at such consultation is the important question, to prove what took place or what the witness then learned, he thereby waives the privilege conferred by the statute and loses his right to object to the testimony of the other physician, if called by the opposite party to testify as to the same transaction.
It is true that the McKinney case was decided prior to the enactment of chapter 381 of the Laws of 1891, which amended section 836 of the Code of Civil Procedure, by providing that the waiver of the privilege must be made “ upon the trial or examination ; ” and the Morris case, prior to the enactment of chapter 53 of the Laws of 1899, which further amended this section by providing that such waiver must be made “in open court on the-trial of the action or proceeding,” but the reasoning in both of them is just as applicable to the section since as it was before the amendments were made, when their purpose is considered - and understood. The purpose of these amendments was to protect parties, their representatives and successors from waivers which might have been obtained through inadvertence or by a species of fraud and sharp practice. (Holden v. Metropolitan Life Ins. Co., 165 N. Y. 13.) Both of the amendments were considered in Schlotterer v. Brooklyn & New York *520Ferry Co. (89 App. Div. 508). There action was brought to recover damages for personal injuries, and on the trial-a physician who had treated, 'the plaintiff was called by the defendant without objection on the part of the plaintiff, whose counsel cross-examined» him. The trial resulted in a nonsuit, and the plaintiff then brought a new action against the defendant tó recover for the same cause of action, and it was held that plaintiff was precluded from objecting; that the physician was incompetent to testify. IVIr. Justice Jenks, in delivering the opinion, said: “ The letter of the statute does not require a construction which is opposed, to the reason of the rule as' laid down in McKinney's Case (supra). The purpose of the statute is to cover the relation of physician and patient with the cloak of confidence. But the purpose is to save the patient from possible humiliation or distress, not to enable him to win a lawsuit, blow, if the patient once permit the physician to testify, there is no longer any réasón at any time for excluding competent testimony under the plea of public policy. If the patient once voluntarily renounce the protection of the • statute, his waiver is everlasting and irrevocable.”
Tinder the foregoing authorities, as well as upon reason, it must be held that the plaintiff, by procuring the issuance, of the cpmmis-, sion and the taking of the deposition of the physician, waived the. privilege which the statute gave herthat such waiver was made in open court, upon the trial of the action, within the meaning of section 836 of the Code of Civil Procedure.
Another question is raised by the appellant, which is that the evidence is insufficient to sustain a finding that the serious injuries of- which the plaintiff complains — diaphragmatic pleurisy and prolapsed ovary — were caused by the accident. This would require consideration, but inasmuch as there must be a new trial, and there may be more evidence bearing upon this subject, I do not deem it necessary at this time to pass upon it.
The judgment and order appealed from, therefore, should be reversed and a new trial ordered, with costs to appellant to abide event.
Lattghlin, J., concurred.
Judgment and order affirmed, with costs. Order filed.