Action by Emanuel Ran against Harry Torchiani. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

Newman & Butler, for appellant.

Aaron Morris, for respondent.

PER CURIAM. The record presents a simple conflict in the testimony given by the respective parties in their own behalf, and the probabilities are not sufficiently with the defendant to justify the reversal of the judgment, which is founded upon the justice's estimate of the relative credibility of the witnesses whose testimony was given before him. Whether the statement introduced to show a settlement of accounts was inconsistent with the claim in suit depended upon the value of the plaintiff's assertion that this claim was not embraced within the account deemed by the parties to be adjusted, and was reserved from the settlement; and, while a point is made by the defendant of the plaintiff's "repayment" of loans made by the former without deducting the amount of this claim, it appears that the repayment was in the form of work, not cash, so the inference sought to be drawn is not cogent.

Judgment affirmed, with costs.

DEUTSCHMANN v. THIRD AVE. R. CO.

(Supreme Court, Appellate Division, First Department. November 20, 1903.) 1. WITNESSES-CREDIBILITY-INCONSISTENT STATEMENT-ADMISSIBILITY.

In an action for personal injuries, defendant offered evidence tending to show that no accident occurred, and that the ailments complained of were due to syphilis, from which plaintiff was suffering. A physician called by plaintiff testified as to the nature and extent of the injuries sustained by plaintiff by reason of the accident, together with the results which flowed therefrom. Held, that a certificate, signed by the physician, certifying that Anna D. had been sick from syphilis and under his treatment, was admissible, as bearing on the credibility of his testimony, though plaintiff's name was Annie D., and though the physician testified that the certificate did not refer to plaintiff, and that he knew that she had never had the disease.

2. SAME CONSIDERATION BY JURY FOR IMPROPER PURPOSES.

Where a written statement signed by a witness was received in evidence as bearing on his credibility, the statement of the court, on denying a motion to strike the statement from the record, and for an instruction to the jury to disregard it, that he would leave it to the jury to say whether the witness made the statement, and whether it referred to anything connected with the case, and would let the jury draw the inferences from it under all the circumstances, did not authorize the jury to consider the statement for any purpose beyond its bearing on the credibility of the witness.

3. MOTION TO STRIKE TESTIMONY ADMISSIBLE FOR ONE PURPOSE-REFUSAL. A motion to strike from the record a written statement was properly denied where the statement was properly admitted in evidence as bearing on the credibility of a witness.

4. EVIDENCE-COLLATERAL MATTERS.

In an action for personal injuries, defendant offered evidence tending to show that no accident occurred, and that the ailments complained of

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were due to syphilis, from which plaintiff was suffering. A physician called by plaintiff testified as to the nature and extent of the injuries sustained by her by reason of the accident, he having treated her for such injuries, and admitted making a written statement to the effect that Anna D. had been sick from syphilis and under his treatment, but testified that the statement did not apply to plaintiff, whose name was Annie D.; that he did not know to whom it referred; that he could not remember the circumstances of making it; and that he knew that plaintiff had never had the disease. Held, that evidence as to what other patients did, or what persons called on him, or what records he kept, or as to whether persons suffering from such disease frequently gave fictitious names, was collateral and inadmissible.

5. CONFIDENTIAL RELATIONS-PHYSICIAN AND PATIENT-EXTENT OF PRIVILEGE. The testimony of a physician, limited to the identification of plaintiff, to the fact that he had treated her, together with the place and length of time of such treatment, did not disclose, or have any tendency to disclose, any communication plaintiff made to the physician, or he to her, within Code Civ. Proc. § 834, prohibiting a physician from disclosing professional information acquired in attending a patient. 6. SAME-OBJECTIONS-SUFFICIENCY TO RAISE QUESTION.

The objection to the question asked a physician which called for an answer as to whether certain prescriptions delivered by him to a patient were in his handwriting, that it was immaterial, irrelevant, and incompetent, did not raise the objection that the question was in violation of Code Civ. Proc. § 834, prohibiting a physician from disclosing professional information acquired in attending a patient, and therefore this objection could not be made available on appeal.

7. SAME-PERSONS INCLUded-Druggist.

Code Civ. Proc. § 834, prohibiting a physician from disclosing professional information acquired from a patient, does not extend to a druggist who fills physicians' prescriptions, nor does it preclude a patient receiving a prescription from divulging its contents; and therefore a druggist filling prescriptions for a physician's patient may testify to that fact, and identify the prescriptions so filled, which prescriptions may then be received in evidence.

8. SAME REFUSAL OF PATIENT TO WAIVE PRIVILEGE-EFFECT-RIGHT TO DRAW INFERENCES THEREFROM.

The refusal of a patient to permit a physician to testify, notwithstanding Code Civ. Proc. § 834, prohibiting a physician from disclosing professional information acquired from a patient, authorizes the jury to draw inferences therefrom warranted by the evidence.

9. REQUESTED INSTRUCTIONS-ERRONEOUS STATEMENT OF LAW-Effect—ReFUSAL TO GIVE.

As the statute only prohibits a physician from disclosing confidential information acquired in attending on a patient where the relation of patient and physician is established, and when the information was necessary to enable him to act in that capacity, a requested instruction that, under the law, communications from a patient to a physician were privileged. and could not be given in testimony except in a case of a waiver of the privilege, was properly refused, being too broad a statement of the law.

Appeal from Trial Term, New York County.

Action by Annie Deutschmann against the Third Avenue Railroad Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

See 79 N. Y. Supp. 1043.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Thomas P. Wickes, for appellant.
Charles F. Brown, for respondent.

HATCH, J. The plaintiff claimed to have received injuries while attempting to board one of the defendant's cars, and by this action seeks to recover damages for such injuries, and the consequences resulting to herself therefrom. It is not necessary to discuss the evidence offered in the case, except so far as the same is required to make disposition of the errors claimed to have been committed by the court upon the trial. The evidence given upon the trial was conflicting; that offered by the plaintiff tending to support the averments of her complaint, and that offered by the defendant tending to contradict the same, and to show that the plaintiff did not meet with any accident, and that she received no injuries upon the occasion of which she made complaint. The evidence required a submission of the question of fact to the jury, and the verdict in favor of the defendant has support in the evidence, and must be sustained, unless some error was committed which calls for a reversal of the judgment. It was shown upon the trial that the plaintiff was pregnant at the time the alleged accident was claimed to have happened, and that shortly thereafter she sustained a miscarriage, which she now contends was produced by the injuries which she received, and that, as a further consequence of such injuries, she had several subsequent miscarriages, and finally was compelled to undergo a surgical operation for the removal of her ovaries, which has resulted in rendering her sterile. The evidence offered by the defendant tended to show not only that no accident happened, and that no injuries were received, but that the suffering which plaintiff underwent, and the consequent surgical operation, were due to the fact that she was afflicted with secret disease, and that such disease was the responsible factor in all her troubles. The evidence presented the issue as to whether the plaintiff had this disease. It was not controverted but that some person of a name in most respects similar to hers had been afflicted with this disease, and had been treated by physicians for it. That was the issue tendered by the defendant, and the plaintiff controverted it by giving evidence tending to show that the person referred to was Anna Deutschmann and not Annie, the plaintiff herein. The plaintiff called as a witness, for the purpose of showing the nature and extent of the injuries received by her, and of the consequent results which flowed therefrom, Dr. Kolb, a physician who attended the plaintiff at the time of her first miscarriage. He was examined by the plaintiff, and disclosed fully in his testimony the physical condition of the plaintiff, the ailments and complaints from which she suffered, and the cause thereof; the plaintiff waiving in every respect, as to him, any privilege which might have been insisted upon under the statute. Upon cross-examination the defendant sought to show that the miscarriage and the physical condition which subsequently required the surgical operation were such as might have been produced by secret disease; and, as bearing thereon, and in connection with the doctor's testimony of his treatment, there was exhibited a written paper, and he was asked if it was not in his handwriting, to which he gave an affirmative answer. defendant then offered the writing in evidence. The plaintiff's attorney objected upon the ground that it was incompetent, irrelevant, and immaterial, and accompanied his objection with the statement that he

The

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would not object to it if the physician would say that it referred to this case, and, if it did not refer to it, it was of no consequence. The court overruled the objection, admitted the paper, and the plaintiff excepted. It reads as follows:

"H. Kolb, M. D., 356 West 42nd St.

"New York, May 1st, 1900. "This is to certify that Mrs. Anna Deutschman has been sick with syphilis and under my treatment during the last three years; manifested by various syphylitic skin eruptions, glandular enlargements, sore mouth (syphylitic) and throat, also has had several miscarriages due to the same cause.

"H. Kolb, M. D."

Upon redirect examination the physician testified that the statement did not refer to the plaintiff; that he did not know to whom it referred; could not remember the circumstances of making it, but that he knew that the plaintiff had never had syphilis. This presents one of the errors relied upon on this appeal. We think the certificate was properly received. There was evidence given in the course of the trial tending to identify the plaintiff as the same person who was treated for syphilis by other physicians, and also by a druggist, who filled prescriptions for her, and who identified her upon the trial, and by the testimony of expert witnesses that the prescriptions which she procured to be filled were specific medicines for that disease. The certificate was the act of Dr. Kolb. If he had given it to the plaintiff, it would clearly be admissible in evidence as bearing upon the credibility of his statement that he attended and treated the plaintiff for injuries resulting from the accident, and not for any other sickness; that she did not have syphilis; and that the certificate did not refer to her. No possible question could then arise as to its admissibility. In view of the character of the evidence developed upon the trial, we think the same rule must apply as though it were admitted that he gave it to her. She was identified by witnesses as a person suffering from that disease. The physical results flowing from it could account for nearly all of the ailments described by Dr. Kolb. He gave important, and, if believed, controlling, testimony in favor of the plaintiff. The defendant therefore had the right to attack his credibility by any evidence proper for that nurnose. When she was so closely connected with the physician, and identified as the person who was receiving treatment for that complaint, it became a fair question, to be submitted to the jury as bearing upon the force and effect to be given to the testimony of Dr. Kolb, as to whether or not the certificate which he made applied to and was for her. From the evidence and the circumstances surrounding the whole case, the jury, we think, were authorized to find that the physician gave to the plaintiff this certificate for some purpose; and, if they so found, its direct effect would be to weaken the force of the physician's testimony upon. a vital question in the case. The difference in the name, and the testimony of the physician that it did not apply to the plaintiff, were questions which the jury were to consider and pass upon in view of the identification which had been made of the plaintiff, as heretofore stated. Such certificate constituted a declaration inconsistent with the testimony of the witness given upon the trial, and was therefore

competent. Beuerelien v. O'Leary, 149 N. Y. 33, 43 N. E. 417; Brooks v. Rochester R. Co., 156 N. Y. 244, 50 N. E. 945. The fact that it was in writing does not change the rule. Hare v. Mahony (Sup.) 14 N. Y. Supp. 81. Under the circumstances of the case, the question was for the jury as to whether the certificate did in fact refer to the plaintiff.

It is claimed, however, that, if the certificate was admissible, it was extended beyond any just or reasonable rule which authorized its reception, and that, being received as bearing upon the credibility of the testimony of the physician, it was in fact used as affirmative evidence to establish that the plaintiff was suffering from the disease therein described. This view was claimed to be presented by a motion to strike from the record the certificate, and for an instruction to the jury to disregard it altogether. The motion was denied, and in reply thereto the court stated:

"I think I will leave it to the jury to say whether Dr. Kolb did make that certificate, or not, and whether it refers to anything connected with this case. Let the jury draw the inference from it under all the circumstances of the case."

There was nothing in this statement showing that the court extended a consideration of the certificate by the jury to any enlarged or improper purpose beyond its bearing upon the credibility of the physician. On the contrary, it was left to the jury to say whether the certificate applied to the plaintiff or not. That was an issue presented by the testimony bearing thereon, and, whether it referred to anything connected with the case, the jury were to draw the inference. There was no motion made to limit the proof as bearing upon the question of credibility. The motion was to strike it out in toto. The ruling denies that motion. It was properly in the case for the limited purpose, and therefore the motion was properly denied. In any event, there is nothing in the language of the court to show that it was considered, or that the jury were authorized to consider it, for any improper purpose. We think, therefore, that the court committed no error in this regard. The former decision of this case (78 App. Div. 413, 79 N. Y. Supp. 1043) does not at all discredit our present views. The whole discussion of the prevailing opinion in that case related to permitting an impeachment of witnesses as to collateral matters, and the judgment was reversed because that had been permitted. The question now presented is not collateral in any sense. It bore directly upon a vital issue, was offered in connection with the cross-examination upon such issue, and the only ground upon which it could be excluded was that it did not relate to the plaintiff. That question was for the jury.

The plaintiff contends that she should have been permitted to show that the physician did not keep records of cash patients, and that men and women called to consult him, and received prescriptions of which he made no record, and that persons suffering from syphilis frequently gave fictitious names. The purpose of this testimony was to account for the giving of this certificate by the physician. It was negative testimony, and entirely collateral to that issue. The question was whether he gave it to the plaintiff or not, and as to that fact he