I cannot concur in the opinion about to be adopted herein. The appellant's counsel contends that this judgment should be reversed for errors in the ruling of the trial court in excluding the evidence of Dr. Moorhead as to conversations he claims to have had with the plaintiff. This physician was called as a witness for the defendant, and testified that he was connected with the J. Hood Wright Memorial Hospital; that he responded with the hospital ambulance to the call to attend the plaintiff; and that after the boy had been placed in his custody he had several conversations with him. Being examined by the counsel for the plaintiff he testified: "It was my duty as surgeon to take statements for the purpose of prescribing for patients and giving them aid and having it entered in the books of the institution. Whatever I said to Willie Green and he said to me was in reference to his condition. I obtained that information for the purpose of prescribing for him. Now I am employed by the Metropolitan Street Railway Company." In response to questions by counsel for the defendant he testified: "Aside from prescribing for him or ascertaining anything concerning his ailment, I don't know as I asked him any questions concerning the way in which the accident occurred, for the purpose of getting information, but patients sometimes volunteer a great deal of information which is not essential to treat them. I had several conversations with him. I asked him how the accident occurred." He further stated in answer to the questions of the plaintiff's counsel that the rules of the hospital required him to ask questions to find out how an accident occurred and the circumstances, for the purpose of recording the information thus acquired in a book, and, in response to the defendant's *Page 206 attorney, he added, that in the course of his duties as an ambulance surgeon he ascertained the causes of accidents. He was then asked to state what the plaintiff said to him, if anything, as to how the accident happened. This was objected to by counsel for the plaintiff, and the court sustained the objection as calling for information within the prohibition of section 834 of the Code of Civil Procedure. To this ruling the counsel for the defendant duly excepted. Section 834 has recently been under consideration by this court in the case of Griffiths v. Met.St. Ry. Co. (171 N.Y. 106), where the same physician was a witness, and we held that his testimony as to conversations with the plaintiff was improperly ruled out. We think, however, that the Griffiths case is clearly distinguishable from the one at bar. In that case there was not only considerable doubt whether the relation of physician and patient had ever existed or, if it had, whether it continued down to the time of the conversation which was excluded, but the physician expressly stated that the information which he acquired as to the occurrence of the accident was distinct from any relation existing between himself and the plaintiff as physician and patient, and the plaintiff proved no facts showing that this was not true. In the case before us the physician distinctly asserted that whatever information he acquired from the patient was in reference to his condition and for the purpose of prescribing for him. He did interject the observation that patients sometimes volunteer a great deal of information that is not essential to their treatment, but in spite of this it plainly appears that the information which he acquired from the defendant was obtained while the relation of physician and patient existed, that it was received by him in his professional capacity and that he regarded it as necessary to enable him to act in that capacity. It may be admitted that, as a general rule, the assertion or admission of the physician as to the purpose for which he obtained information from the patient is not the most reliable test to apply in the admission or exclusion of such evidence. There are cases in which the evidence itself can furnish the only *Page 207 reliable guide. This is not one of those cases. The doctor asserts that all the information he obtained from the plaintiff was necessary for purposes of professional treatment. While it is true that the question which was objected to and ruled out simply called for statements made by the plaintiff as to how the accident happened, it is equally true that we cannot say, as matter of law, that the statements thus made were not necessary to enable the doctor to prescribe for and treat the plaintiff. The injury to the plaintiff's leg was visible. No statement was necessary to determine the proper treatment for that. But the plaintiff had been dragged for a distance of about one hundred feet. His appearance, aside from his wounded leg, must have indicated that he had suffered a terrible ordeal. He was a boy of tender years who could, perhaps, describe with greater accuracy what had happened to him than he could detail the subjective results or manifestations of the accident. Under just such conditions an intelligent and skillful physician might much more surely ascertain the probable or possible nature or extent of injury by getting at the facts of the accident than he could by the usual methods of the diagnostician. We think, upon the whole, that the plaintiff in this case has successfully sustained the burden of showing that the evidence excluded consisted of information which was necessary to enable the physician to treat the plaintiff professionally. (People v. Koerner, 154 N.Y. 355;Fisher v. Fisher, 129 N.Y. 654; People v. Schuyler,106 N.Y. 298; Edington v. Ætna Life Ins. Co., 77 N.Y. 564;Nelson v. Village of Oneida, 156 N.Y. 219.)
The judgment of the Appellate Division should be affirmed, with costs.
PARKER, Ch. J., O'BRIEN and CULLEN, JJ., concur with GRAY, J.; MARTIN and VANN, JJ., concur with WERNER, J.
Judgment reversed, etc. *Page 208