#### Mary Heath, Resp’t, *v.*The Broadway & Seventh Ave. R. R. Co., App’lt.

*(New York Superior Court, General Term,*

*Filed February 6, 1890.)*

Negligence—Evidence—Code Crv. Peo., § 834.

A physician not employed by the plaintiff, but who was sent by the defendant to procure information for his employer as to the extent of plaintiff’s injury, and obtain admissions as to the accident, and who made an examination for that purpose, is not within the prohibition of § 834 of the Code, and should be allowed to testify to statements made by plaintiff to him at that time.

Appeal from judgment in favor of plaintiff

*Boot & Strong,*for app’lt; *Vanderpoel, Gaming & Goodwin,*for resp’t.

O’Gtorman, J.

This action is brought by the plaintiff to recover damages against the defendant company, for injury inflicted on her, by reason of the negligence of the conductor on one of defendant’s cars in starting it suddenly while plaintiff was alighting, whereby plaintiff was personally injured and incurred pecuniary loss.

A verdict was rendered in favor of the plaintiff for $2,513.86, and judgment entered thereon.

The defendant moved for a new trial, which motion was denied and appeal was taken.

Appeal was also taken from the judgment

An important question to be considered now is, was error committed at the trial in the rejection of certain testimony offered *268on the part of the defendant of a statement made by the plaintiff to the witness, Dr. Ewing, of the circumstances of the accident.

The counsel for the plaintiff contends that it was inadmissible, under § 834 of the Code of Civil Procedure, as calling for the disclosure of information which the witness acquired in attending his patient (the plaintiff), in a professional capacity.

The material facts, as they appear in evidence, are these:

A few days after the accident occurred to the plaintiff, and while she was under the care and professional attendance of Dr. Eider, a person came to plaintiff’s house and sent to her a message by her servant that a gentleman would like to see her.

The plaintiff came to him in her parlor, and he gave his name and said that he came on behalf of the Broadway & Seventh Avenue Railroad Company, learning that she had been injured.

She asked him to walk back to her rear room. He did so, and there met Dr. Eider, who was a lady physician.

He had some conversation with the plaintiff, as to the circumstances of the accident, and proceeded, in company with Dr. Eider, to examine the plaintiff’s knees. He moved the knee pans, then examined her side, which was bared for the purpose, and felt the edges of the ribs to their full extent.

After finishing this examination, and assuring himself that there was no fracture of any rib, witness and Dr. Eider withdrew into the parlor.

He deposed that when he saw the plaintiff he gave her to understand that he came on behalf of the Eailroad Company.

He also said “ Mrs. Heath gave me the particulars of the accident, in reply to questions of mine.”

There is no substantial variance between the testimony of the plaintiff and that of Dr. Eider and Dr. Ewing on this subject.

The plaintiff deposed that her Dr. Rider brought Dr. Ewing into the plaintiff’s room.

She does not -remember whether Dr. Eider told her his business.

She was in pain at the time he came. She did not send for him. Some one told her that he said that he came from the railroad, and she must see him.

There is no evidence that Ewing prescribed for the plaintiff, consulted with the plaintiff’s doctor, or gave her any professional advice or suggestions as to the treatment of the plaintiff’s case, or gave, by word or deed, any reason to believe that he intended to render any professional service to the plaintiff.

On the contrary, the evidence shows that his purpose and object were to procure for his employer, the defendant company, exact information about the extent of the plaintiff’s injury, and to elicit from her admissions as to the circumstances of the accident, and to place the information thus procured at the disposal of the defendant company, by whom he was employed.

Ewing testified that it was the intention of Dr. Rider to call a surgeon, in whose hands the case was to be placed.

But it does not appear that there was any thought of seeking any professional assistance from Ewing.

In these facts I can see nothing to support the contention that *269Ewing was, at any time, attending the plaintiff in a professional capacity, or that the information acquired by him as to which he was called on to testify was acquired in attending plaintiff as a patient, or was necessary to enable him to act in a professional capacity.

In order to enforce the prohibition against disclosure contemplated by the statute, it is necessary that these essential conditions should exist, and I do not find any authoritative decision of oar courts that does not require them.

The burden of proving the prohibition against disclosure, by the witness, is on the party claiming the prohibition to exist. *People*v. Schuyler, 106 N. Y., 298, 304; 8 N. Y. State Rep., 860; *Edington*v. *Ætna Life Ins. Co.,*77 N. Y., 564; *Stowell*v. *American, etc., Co.,*5 N. Y. Supplt., 235; 23 N. Y. State Rep., 706.

The authorities cited on behalf of the plaintiff on this subject do not seem to me to sustain her conclusion.

In *Renihan*v. Dennin, 103 N. Y., 577, 578; 4 N. Y. State Rep., 261, the physician, whose testimony was admitted, was called in by the attending physician, and went in a professional capacity to see the patient.

He did not thrust himself into the presence of the patient or intrude there. He was called in by the attending physician.

In the case at bar, Ewing was not called in by Dr. Rider, or by anyone else, on behalf of the plaintiff, and was to all intents and purposes an intruder.

For the reasons stated, and inasmuch as the admissions or declarations of a- party, if material to the issue, are always admissible against him, the exclusion of the testimony cannot be justified on the ground that the witness was a physician.

It was clearly relevant to the issue, and if the answer of the witness had shown that the plaintiff had made to the doctor a statement inconsistent with the testimony given by her on the trial, it would have been quite material.

Hnder the doctrine laid down in *Rosenberg*v. *Block,*102 N. Y., 255, 259; 1 N. Y. State Rep., 646, we must presume that the answer to the excluded question, if the question had been allowed, would have related to some material fact.

The result is, that the exclusion of the testimony must be held to have been error.

The appellant also complains that the condition of the plaintiff, about a year after the accident, in consequence of an abscess which then appeared, was not connected with the accident with sufficient certainty to authorize the jury to take it into account in assessing damages.

The medical testimony on this point was admissible under the decision of *Turner*v. *The City of Newburgh,*109 N. Y., 301; 15 N. Y. State Rep., 93, and it was sufficient to go to the jury for what it was worth.

And inasmuch as the jury was expressly instructed not to give damages on account thereof, unless they were reasonably certain that the abscess was caused by the fall of the plaintiff from defendant’s car, the rights of the defendant were fully protected.

*270There are other questions in the case which it is not necessary to discuss.

For the error committed in the exclusion of the testimony hereinbefore referred to, the judgment and order appealed from should be reversed and a new trial ordered, with costs to abide the event

•Freedman, J., concurs.