Marquardt v. Brooklyn Heights Railroad

Miller, J.: This is an action for personal injuries, caused by a collision between two cars, on one of which the plaintiff was a passenger. The serious question in the case was the extent of the plaintiff’s injuries. • She called as a witness a physician who attended her after the accident and who testified that he treated her for a nervous condition. The defendant’s counsel elicited from the witness on cross-examination the fact that he had treated the plaintiff for nervousness before the accident. The evidence was at first objected to as incompetent and inadmissible, and the court was about to sustain it on the ground that it was privileged, when the plaintiff’s counsel stated that he was not claiming privilege, whereupon the defendant’s counsel was allowed to proceed with the cross-examination until finally, after some dialogue between the court and counsel, the court stopped the cross-examination in reference to the plaintiff’s [273] condition prior to the accident and struck out all of the testimony of the witness on that subject, on the ground that the witness was precluded from testifying by section 834 of the Code of Civil Procedure. By calling the physician as a witness the plaintiff waived her privilege. (Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y. 77; Morris v. N. Y., O. & W. R. Co., 148 id. 88; Holcomb v. Harris, 166 id. 257.) Permitting the witness to be sworn and examined without objection is an express waiver (Schlotterer v. Brooklyn & N. Y. Ferry Co., 89 App. Div. 508), and a waiver once made cannot be recalled. (McKinney v. Grand Street, etc., R. R. Co., 104 N. Y. 352; Schlotterer v. Brooklyn & N. Y. Ferry Co., supra.) In this case plaintiff had not only called the witness and examined him in reference to her condition after the accident, but counsel during the cross-examination had expressly stated that he did not claim the privilege as to examinations made by the witness prior to the accident. We think that by calling the physician and examining him in reference to her condition after the accident, the plaintiff waived her privilege as to prior examinations, and it was permissible for the defendant to show by cross-examination that the condition testified to by the witness existed prior to the accident. If the plaintiff desired the shield of the statute, she should not have called the physician as a witness. When she did so, she opened the door to any inquiry relevant to the fact in issue concerning which the witness had testified. (Powers v. Metropolitan Street R. Co., 105 App. Div. 358.) The judgment and order should be reversed. Woodward, Jenks, Hooker and Rich, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.