People v. Bloom

Ingraham, J.: The defendant was convicted of perjury committed upon the trial of a civil action for damages brought by him against, the Metropolitan Street Railway Company. There is not and has not [768] been the slightest doubt expressed by any one as to his guilt, and I think his conviction could be sustained upon his own testimony. Under such circumstances it seems to me contrary to" the express provisions of the Code of Criminal Procedure (§ 542) and to the" course of judicial authority in this State, to reverse the judgment because of an error in the admission of testimony. The only error that is seriously claimed by the learned counsel for the ■ appellant is the admission of the testimony of certain physicians who had treated the defendant, as to his condition at or before the time at which he alleged he sustained injuries in consequence of the negligence of the railroad company, and it is this error that has constrained Hr. Justice Scott to advise the reversal of the judgment. I think, however^ that the admission of that testimony was not error, ' Before the amendment of section 836 of the Code of Civil Procedure by chapter 53 of the Laws of 1899, it was settled by the case of McKinney v. Grand Street, etc., R. R. Co. (104 N. Y. 352) that “ the intent of the statute, in making such information privileged, is to inspire confidence between patient and physician, to enable the latter to prescribe for and advise the former most advantageously, and remove from the patient’s mind any fear that she may be.exposed to civil or criminal prosecution, or shame and disgrace, by reason of any disclosures thus made. Therefore, the statute provides that the information acquired by a physician while attending a patient in his pi-ofessional capacity shall not be disclosed unless the patient expressly waives "its prohibition.” Once, however, that this “ban of secrecy” has been removed by the patient and the information made public, the right to object further thereto has not been conferred. “ The patient cannot use this privilege both as a sword and a shield, to 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 reason 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 [769] 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. * * * The object of the statute having been voluntarily defeated by the pa,rty for whose benefit it was enacted, there can be no reason for its continued enforcement in such case.” The amendments to the Code of Civil Procedure subsequent to the trial of this case have no bearing upon this construction of the statute. The Code as it then stood*, required an express waiver' by the patient before the testimony could be given, and the subsequent amendments to section 836 of the Code of Civil Procedure† only apply as to how the waivers provided for in the. section shall be made. By the Code as finally amended and in force at the time of the trial of this action it is provided that the waivers provided for must be made in- open court on the trial of the action or proceeding; but when the privilege given by the statute‡ has been actually waived in open court by the patient, the reasoning in the McKinney Case (supra) then applies, and as. Chief Judge Ruger there said: “ The object of the statute having been voluntarily defeated by the party for whose benefit it was enacted, there can be no reason for its continued enforcement in such case,” and that when the privilege is once waived and- made effectual by publication, “it is waived for all time.” And in the last case upon this subject, that of Clifford v. Denver & Rio Grande R. R. Co. (188 N. Y. 349), Judge Vann, in delivering the opinion of the court, cited what Chief Judge Ruger said in the McKinney Case (supra) as illustrating the subject and as applying to the statute in its present condition, and no suggestion was made that this rule had been changed by the amendments to either of these sections. There was also cited the case of Morris v. N. Y., O. & W. R. Co. (148 N. Y. 88), where Judge O’Brien, writing.the unanimous, opinion of the court, said that “ it was the privilege of the plaintiff to insist that [770] both physicians should remain silent as to all information they ■ obtained' at the consultation, but she waived this privilege when she called Dr. Payne as a witness and required him to disclose it. The plaintiff could "not sever her privilege and waive it in part and retain it in part. If she waived it at all it then ceased to exist, hot partially but entirely. * * * ■ The seal of confidence was removed entirely, not merely broken into two parts and One part, removed' ' and the ¿ther retained.” Judge Yann, after an examination of the authorities, continued: “ The amendment of. 1899 must be read" in fhe light'of the object of the statute, which was to "prevent the disclosure of a patient’s secrets against his will, not to interpose an obstacle to the administration, of justice by suppressing facts already made public by the patient himself in a legal proceeding. The Legislature did not intend, to allow a party to cause a record to be made and filed in a.public office, in 'which the testimony of his physician, taken at his instance, is set forth at- large, stating confidential facts material iii a "controversy with another party, and then- to prevent, that evidence from being read before'the jury by advancing as his only objection that it would divulge private niatters. The language of the section limiting waivers to such as' áre made in open court on the tidal of' an' action or by the stipulation of the attorneys, for the respective parties should be so construed as to promote, not ■ to defeat the purpose of- the statute.” ' In Schlotterer v. Brooklyn & N. Y. Ferry Co. (89 App. Div. 508) the McKinney Case (supra) was followed, and it was held that where' the patient" had waived the privilege conferred- by section' 834 of the Code of Civil Procedure in the trial of one action, that in a subsequent action betwéen the same parties the testimony was competent notwithstanding the objection of the patient. That casé was decided after the amendr ments'to section 836 of the Code of Civil Procedure, and it was held that they did not change the rule as laid down in the McKinney Case (supra) and that case was also-cited, apparently with approval, in the Clifford Case (supra). Beading these authorities in - connection with the amendments to section 836 of the. Code of Civil Procedure made by chapter 53 of the Laws of ,1899 and by chapter 331 of the Laws of 1904, it‘seems to me that the Court of Appeals in the Clifford case-have expressly ' applied the rule laid down in the McKinney Case (supra) and [771] reaffirmed in the Morris Case (supra) to the Code as it was after these amendments, and reaffirmed the proposition that a patient could not after the amendments, as he could not before the amendments, having once waived the privilege and permitted ’ the physician to testify as to the confidential communications made by the patient to the physician, subsequently prevent the physician from testifying by an objection based solely upon the privileges awarded to a patient by section 834 of the Code of Civil Procedure. As it appeared in this case that the defendant had waived the objection to these physicians testifying as to his condition at the time he was treated by them he thereby waived forever the privilege of objecting to the testimony upon the ground that it was privileged and it was, there- • fore, not error for the court to admit it. -I am, therefore, in favor of the affirmance of this judgment. Patterson, P. J., concurred- in result; McLaughlin and Scott, JJ., dissented. Footnotes [*] See Laws of 1876, chap. 448, § 836, as amd. by Laws of 1877, chap. 416, § 1, subd. 185.— [Rep. [†] See Laws of 1891, chap. 381; Laws of 1892, chap. 514; Laws of 1893, chap. 395; Laws of 1899, chap. 53, and Laws of 1904, chap. 331.— [Rep. [‡] See Code Civ. Proo. § 834, as amd. by Laws of 1904, chap. 331, and Laws of 1905, chap. 331.— [Rep.