The defendant, as alleged in the complaint, assaulted and injured the plaintiffs son, an infant aged about seventeen years. The father now sues, not in his son’s right, but in his own, for the loss of his son’s services, and the expenses of his medical attendance. Upon the trial the plaintiff called as witness the physician who had attended the boy, who was permitted, notwithstanding the defendant’s objection, to testify as to information he obtained as to the boy’s injuries while attending and treating him. It is clear from the evidence that the boy boro to the witness the relation of a patient, and that all the information the witness obtained and to which he testified was acquired while attending the boy as a patient. The boy himself, who was about seventeen years of age, was a witness upon the trial, and apparently was present in court when the physician testified. He was not, however, asked to waive his privilege with regard to the physician’s evidence, and it is not, therefore, necessary to consider the question of the competency of a lad of that age to effectually waive the purely personal privilege of keeping closed his physician’s mouth, a waiver which could involve no surrender of any valuable right, or loss of any material advantage. The father did, however, undertake, in his son’s behalf, to waive the privilege, and the physician was thereupon permitted to testify. The exception to this ruling raises the only important question presented upon appeal. Section 834 of the Code of Civil Procedure is most explicit and peremptory. ■ It provides that a physician “ shall 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.” It is not easy to see how any words could have been adopted making a physician’s disqualification more absolute. The Legislature has, however, prescribed certain conditions under which such testimony may be received, and' in order to uphold the ruling of the learned trial justice it must appear that *145there was presented to him a condition of affairs under which the physician’s evidence is declared to be admissible. At the time of the trial of this action chapter 53, Laws of 1899, had not yet gone into effect, and the only provision of law under which a physician could testify during the lifetime of the patient was that contained in section 836 of the Code of Civil Procedure, which provided that section 834 should apply to any examination of a person as a witness “ unless the provisions thereof are expressly waived upon the trial or examination by the * * * patient.” An examination of some of the leading cases in this State upon the subject of receiving the testimony of physicians will serve to show how rigidly the statutory inhibition has been maintained, and with what persistency all attempts to evade it have been defeated. In Edington v. Mutual Life Ins. Co., 67 N. Y. 185, the Court of Appeals said: “ The statute is very explicit in forbidding a physician from disclosing any information received by him which is necessary to enable him to prescribe for a patient under his charge. It is a just and useful enactment, introduced to give protection to those who were in charge of physicians from the secrets disclosed to enable them properly to prescribe for diseases of the patient. To open the door to the disclosure of secrets revealed on the sick bed, or when consulting a physician, would destroy confidence between the physician and patient, and, it is easy to see, might tend very much to prevent the advantages and benefits which flow from this confidential relationship.” In Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281, an attempt was made to introduce evidence of a physician after the death of the patient, so that if the patient’s consent alone could open his lips, they must remain closed forever. The court refused to permit the statute to be violated, saying, in reference to it, and speaking of information acquired by the physician while treating a patient: “ The information so obtained must remain enclosed with him, for he is forbidden by statute to ‘ disclose ’ it. The word must be taken in its fullest sense. He must not tell it; not because the patient declared the communication to be confidential, or because the physician considered it so, but because the statute says that the communication to him shall not be by him disclosed or told. Any other rule will annul the statute, and permit it to be evaded. * * * The court need lay down no rule; the statute is the rule, and we are merely to inquire whether the case comes within it ”.
The rule of evidence referred to was exhaustively considered *146in Westover v. Aetna Life Ins. Co., 99 N. Y. 56. This was an action upon a life insurance policy issued to plaintiff’s testator. The Legislature had, in 1877, adopted section 836 of the Code, but as then enacted it permitted a waiver only by the patient, making no provision for a waiver by any one after the patient’s death. The plaintiff as the patient’s executor and for the benefit of his estate sought to examine his physician. If the court would in any case be disposed to mitigate or construe away the absolute prohibition of the statute, here was presented a case to induce such action. The Court of Appeals, however, remained unshaken in its attitude respecting the statute saying: “ It is thus seen that clergymen, physicians and attorneys are not only absolutely prohibited from making the disclosures mentioned, but that by an entirely new section it is provided that the seal of the law placed upon such disclosures can be removed only by the express waiver of the person mentioned. Thus there does not seem to be left any room for construction. The sections are absolute and unqualified. These provisions of law are founded upon public policy, and in all cases where they apply the seal of the law must forever remain until it is removed by the person confessing, or the patient or the client. * * * Without further discussion or citation of authorities, we think the statute admits of no other construction than that, where the evidence comes within the prohibition of the statute, its reception, if objected to, can be justified only when the patient, penitent or client, as the case may be, waives the protection the statute gives him ”.
In Renihan v. Dennin, 103 N. Y. 573, which involved the validity of a will, the Court of Appeals reiterated its rulings as to the impossibility of receiving a physician’s testimony at all after the patient’s death, recognizing and commenting upon the inconvenience of the rule in testamentary cases, and in actions upon life insurance policies. The decision in this case in 1886, following the Westover case in 1885, doubtless led to- the amendment of section 836 in 1892, permitting the waiver to be made in certain cases by specified personal representatives of a decedent. These cases and numerous others that might be cited serve to demonstrate the jealous care with which the courts of this State have enforced the letter of the statute, leaving to the Legislature the determination of the circumstances under which a physician’s evidence may be received, never by any chance relaxing the strictest rule of ex-*147elusion within the language of the statute, save in a single instance when, in a criminal case, a physician who had attended a murdered man, was permitted to testify against his murderer. Pierson v. People, 79 N. Y. 424. As was pointed out in Grattan v. Met. Life Ins. Co., supra, this exception to the general rule was recognized as one proper to be made in accordance with the general principle which makes the safety of the citizen the paramount law of the land. It furnishes no argument for a widening of the rule in civil actions. The statute makes no provision for a waiver in behalf of an infant by a parent or guardian, and no such waiver can be effectually made unless there be something in the relation of a parent to his child, or a guardian to his ward which implies the authority to act for the child or ward in making such a waiver. A father is, for certain purposes, the natural guardian of his son’s person, but the power and authority, even over the -person, is far from being unlimited. The fundamental idea underlying all guard- ■ ianships is that the State owes to the infant the duty of protection, and the guardian is but the agent or instrument of the State in fulfilling that duty. The relation of a guardian to his ward, even that of a natural guardian, is created solely for the benefit of the ward, and not at all for the benefit of the guardian. It implies the possession by the guardian of power to do that which will be beneficial to the ward, but carries with it no implication of power to do anything, by virtue of the relation of guardian, which will benefit the guardian alone in his individual capacity. In other words, a man cannot do an act as guardian, which he could not do if he were not guardian, if the result of that act will be for his own benefit alone. The office of guardian carries no such power with it. If this was the son’s action for damages, and his attorney or his guardian ad litem sought to waive the privilege in his behalf and for his benefit a different question would be presented, which it is not necessary to determine here. The action is not the son’s, but the father’s. It is prosecuted by the father, not in his son’s right, but in his own, and its fruits are to be enjoyed by him alone, without any legal right to participation therein by the son. So far as this action is concerned he is not his son’s guardian, and stands towards him on no other or better position than a stranger. In fact he stands in precisely the same position as would a master to whom the boy had been indentured, and it would scarcely be seriously contended in an action by such a master for loss of the ser*148vices of Ms apprentice that the master could, under the statute, take the boy’s place to waive the privilege. It may be that the plaintiff will be inconvenienced by losing the testimony of the physician, but that argument cannot be allowed to defeat the operation of a plain and peremptory statutory disqualification. The plaintiffs in Westover v. Aetna Life Ins. Co., and other cases above cited, were, at least, as much inconvenienced. Much greater inconvenience would be likely to result, if we were to attempt by strained and forced construction to extend the exceptions to the prohibition of the statute beyond the strict letter of the law, for, as was said in Balguy v. Broadhurst, 1 Sim. (N. S.) 111, “ I am sure that it is most inconvenient to have a rule laid down, and. the Courts struggling to avoid it.” That the defendant was entitled to object to the admission of the evidence is decided in the Westover case, supra.
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Judgment affirmed, with costs.