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error and not such as would warrant reversal. The court indicates this when it says, "In any case the evidence that the applicant was sick on the day before he was taken to the hospital appears almost, if not entirely, beyond controversy by testimony other than that of the attending physician."

To bring a case within the provisions of section 834 the existence of the relation of physician and patient must appear, the information sought to be excluded must have been obtained as a result of this relationship, and the objection must be made at the time the evidence is offered and should be based specifically upon the provisions of this section.

It must be determined from the facts in each particular case whether the relation of physician and patient there existed. The chief consideration is whether the person to whom the information related believed, and had reason to believe, that he was confiding as patient to a physician. When one who is sick unto death is in fact treated, even against his will, by a physician he becomes the patient of that physician. The same rule applies in the case of a man who is unconscious or unable to speak for himself. The fact that the information related to a person not a party to the action at bar does not take it out of the statute. The burden of showing that the relation of patient and physician existed is upon the one making objection to the evidence.9

The courts have not limited the operation of this section strictly to that information gained by the physician which was "necessary for him to act in that capacity," but have, in effect, excluded all information as to the physical condition of the patient obtained as a result of the professional relationship.10 It is not necessary that the information be conveyed to the physician by word of mouth. The statute applies to what the physician observes, no matter how prominent and noticeable the particular physical characteristics of the patient may be." The physician may, however, testify as to the physical condition of a former patient, but such testimony must be based wholly on the information gained subsequent to the time when the relation of patient and physician existed.12 The burden is upon the party objecting to show that the information in question was

Supra, note 3.

People v. Murphy, 101 N. Y. 126 (1886); People v. Sliney, 137 N. Y. 570 (1893); People v. Hoch, 150 N. Y. 291 (1896); People v. Koerner, 154 N. Y. 355 (1897); People v. Kemmler, 119 N. Y. 580 (1890).

'Meyer v. Knights of Pythias, 178 N. Y. 63 (1904).

Matter of Myer, 184 N. Y. 54 (1906); Edington v. Mutual Life Insurance Co., 67 N. Y. 185 (1876).

'People v. Schuyler, 106 N. Y. 298 (1887).

10Nelson v. Village of Oneida, 156 N. Y. 219 (1898); Renihan v. Dennin, 103 N. Y. 573 (1886).

"Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281 (1880); Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274 (1883); Edington v. Mutual Life Ins. Co., 67 N. Y. 185 (1876); Dilleber v. Home Life Ins. Co., 69 N. Y. 256 (1877). 12Edington v. Aetna Life Ins. Co., 77 N. Y. 564 (1879); Fisher v. Fisher, 129 N. Y. 654 (1892); People v. Austin, 199 N. Y. 446 (1910).

obtained by the physician while professionally attending the person to whom the matter relates."

Objection to the admission in evidence of confidential information confided by a patient to a physician should not be based upon any general ground but counsel should specify that he is resting his objection upon the provisions of section 834.14 The reason for this appears to be that the prohibition is wholly statutory. At common law a physician could testify as to confidential information given him. It has been held that where matter coming within section 834 has been admitted without objection the question of its competency cannot be raised by a motion to strike it out.15 The objection should be made at the time the evidence is offered.

The statute applies to both civil and criminal cases. In actions to invalidate a will it can be used to prevent physicians who have attended the testator from testifying as to his capacity to make a will.16 In an action by a physician against a patient to collect fees, the physician can testify only as to the making of the contract for services and cannot describe the patient's physical condition or go into detail in any way in regard to the services rendered.17 The statute is used widely in actions on insurance policies where the physical condition of the insured at a certain time is a question in In an action for damages for personal injuries the plaintiff may use the section to prevent the examination of physicians who have attended him.18 If the physician is called as a witness for the plaintiff, either in the same trial or in a former trial of the same cause of action, that constitutes a waiver of the provisions of section 834.19 If plaintiff has been examined by more than one physician and calls one of them as a witness, that constitutes a waiver as to the other physicians.20 If, however, the physicians examined the plaintiff at different times the calling of one is not a waiver as to the others.21 The statute does not, however, prevent the physician from relating information where such information does not refer to the plaintiff's physical condition, but to the manner and cause of the accident.22

13Griffiths v. Metropolitan Street Ry. Co., 171 N. Y. 106 (1902); Patten v. United Life and Accident Assoc., 133 N. Y. 450 (1892); People v. Austin, supra, note 12; People v. Schuyler, supra, note 9.

"Hoyt v. Hoyt, 112 N. Y. 493 (1889).

15 Supra, note 14. See also People v. Bloom, 193 N. Y. 1 (1908); where it was held that testimony of a physician not objected to when the patient was plaintiff in a civil action for damages for personal injuries could not be objected to when patient was being tried on an indictment for perjury.

16 Renihan v. Dennin, 103 N. Y. 573 (1886); Matter of Coleman, 111 N. Y. 220 (1888); Loder v. Whelpley, 111 N. Y. 239 (1888); Matter of Myer, 184 N. Y. 54 (1906); Matter of Newcomb, 192 N. Y. 238 (1908).

17MacEvitt v. Maass, 64 App. Div. (N. Y.) 382 (1901).

18 Feeney v. Long Island R. R. Co., 116 N. Y. 375 (1889); Sloan v. N. Y. Central R. R. Co., 45 N. Y. 125 (1871); Jones v. Brooklyn, B. & W. E. R. R. Co., 3 N. Y. Sup. 253 (1888), aff'd without opinion 121 N. Y. 683 (1890).

19McKiney v. Grand Street, P. P. & F. R. R. Co., 104 N. Y. 352 (1887).

20 Morris v. N. Y. O. & W. R. R. Co., 148 N. Y. 88 (1895).

"Barker v. Cunard Steamship Co., 91 Hun (N. Y.) 495 (1895), aff'd without

opinion 157 N. Y. 693 (1898).

22Green v. Metropolitan Street Ry. Co., 171 N. Y. 201 (1902).

In applying section 834 to criminal cases the most troublesome situations arise when the state sends a physician to examine the accused as to his sanity or condition in other respects. If it can be shown that the relation of physician and patient arose between the state physician and the accused then the statute may be used to prevent the physician from giving the results of his examination.23 In murder cases the physician who attended the deceased just before his death may give the results of his examination of the deceased.24 Where the patient himself is a witness he can no more be compelled to disclose confidential information than can the physician.25 The provisions of section 834 may be waived in accordance with the provisions of section 836 of the Code of Civil Procedure.

Harry H. Hoffnagle, '17.

Husband and Wife: Alienation of affections: Plaintiff's husband the pursuing party.-Where a wife brings action against another woman for alienating the affections of the plaintiff's husband, is it a necessary part of the cause of action that the defendant shall have done some affirmative act tending to alienate the affections of the husband? This question is answered in the affirmative in the case of Loper v. Askin, 178 App. Div. (N. Y.) 163 (1917). It must appear, in the language of the court, "that the woman defendant was the pursuer, not merely the pursued. She does not become liable because she may have accepted the admiration of plaintiff's husband." This view is clearly the one supported by New York authority, and has been adopted by the great majority of courts in which the question has arisen,3 on the theory that the defendant should not be blamed for the husband's wrongful act.

A different view was taken in the case of Hart v. Knapp. In that case, which was an action for the alienation of the affections of the plaintiff's husband, it was shown that the defendant had been guilty of adultery with the husband. The defendant was held liable for alienation of affections, even although the husband was the seducer. This position has also been taken by Vermont. The theory upon which these cases were decided seems to be that there are two grounds upon which an action for alienation of affections may be maintained; first, for alienation by persuasion or allurement, in which case loss of consortium must be proved; second, for alienation by adultery, in

23 Supra, note 6.

24 Pierson v. People, 79 N. Y. 424 (1880).

25 Dambmann v. Metropolitan St. Ry. Co., 55 Misc. (N. Y.) 60 (1907). 1At p. 164.

Warner v. Miller, 17 Abb. N. C. (N. Y.) 221 (1885); Churchill v. Lewis, 17 Abb. N. C. (N. Y.) 226 (1886); Buchanan v. Foster, 23 App. Div. (N. Y.) 542 (1897); Whitman v. Egbert, 27 App. Div. (N. Y.) 374 (1898).

Waldron v. Waldron, 45 Fed. 315 (1890); Ash v. Prunier, 105 Fed. 722 (1901); Scott v. O'Brien, 129 Ky. 1 (1908); DeFord v. Johnson, 152 Mo. App. 209 (1911); McKenna v. Algeo, 51 Atl. (N. J.) 936 (1902); Stewart v. Hagerty, 251 Pa. 603 (1916).

476 Conn. 135 (1903).

'Miller v. Pearce, 86 Vt. 322 (1913).

which case loss of consortium is conclusively presumed. This latter ground practically amounts to allowing the wife to maintain an action for criminal conversation, which is not generally permitted." It is only on this ground that the view of Hart v. Knapp can be explained; yet the court in that case expressly refused to decide the latter question, declaring that a distinction existed between the two

cases.

9

Were actions by the wife for criminal conversation allowed, it would seem that the view in Hart v. Knapp would be correct; for it has been held that the fact that the wife was the persuading party is no defense to an action for criminal conversation brought by the husband, though it may serve to mitigate damages. The gist of such action is the defilement of the marriage bed and it would make no difference who the persuading party was. But if the action is for alienation of affections, the same rule should not be applied; for if the defendant has done no act to steal away the love of the plaintiff's spouse, there is no wrongful act upon which an action may be based; this would be true, whether the husband or wife was plaintiff. There might be adultery without alienation of affections.10

It would appear, therefore, that the view of the principal case is correct, and that the result in the cases taking the other view has been reached through a confusion of the action for alienation of affections with the action for criminal conversation.

Richard H. Brown, '19.

Insurance: Mutual Benefit Companies: Right to amend by-laws. -The question as to the right of a mutual benefit insurance company to amend its by-laws has again been litigated in the case of Tusant et al v. Grand Lodge, A. O. U. W., 163 N. W. (Ia.) 690 (1917). The plaintiffs had been members of the defendant order for over thirty years. In 1911, in order to put the association upon a substantial basis, an amendment to the by-laws was passed, dividing the membership into two classes, the younger members of the order being included in Class B and the older men in Class A. Class B was placed upon a self-paying basis and at the same time the rate of assessment for those in Class A was raised and the members required to pay their own death losses without aid from the younger members of the order. In 1916, those of the older men who remained were peremptorily required by another amendment to either maintain their insurance by paying the Class B rate for men of their age, or to continue to pay the same assessment but submitting to a scaling down of their certificate to an amount commensurate with such rate as shown by the mortality tables. The plaintiffs refused to obey the amendment, and in a suit to enjoin its enforcement, the court, conceding the right to make

"Miller v. Pearce, supra, note 5, at p. 328.

76 Ann. Cas. 665, and cases there cited.

See cases cited in Hart v. Knapp, supra, note 4, at p. 140.

Hoggins v. Coad, 58 Ill. App. 58 (1895); Ferguson v. Smethers, 70 Ind. 519 (1880); Sieber v. Pettit, 200 Pa. 58 (1901).

10This seems to be recognized in a later Vermont case, Nieberg v. Cohen, 88 Vt. 281, 287 (1914).

reasonable amendments and regulations to preserve the life of the order, held the association to be without power to make such an amendment as the one in question, and, therefore, the action of the defendant in purporting to deny to the plaintiffs the benefits of a going concern and of new membership was a violation of their "substantial rights."

The decision was undoubtedly correct, and, although upon the same facts there would seem to be little conflict, it presents the problem as to when such organizations may change, in respect to the increase of assessments or decrease of benefits, their contractual obligations as evidenced by their constitution, by-laws and certificate of insurance. Whether or not there is an express reservation of the right to change and amend the by-laws, it is generally conceded that a mutual benefit association may enact such by-laws as are reasonably necessary for the government and regulation of the order.1 But where the contract contains a general reservation of the power to change and amend, the cases are in great conflict as to just how far such a reservation extends. In Thomas v. Knights of Maccabees, the certificate contained the provision that the member "will comply with the laws of the order now in force or that may hereafter be adopted," and also a clause to the effect that the rate of assessment would not be changed as long as the plaintiff was a member in good standing. The rate was later raised and suit was begun to enjoin its collection. The Supreme Court of Washington held that such a change could be made under the general reservation, remarking that "there being no contract in the commercial sense, but a mutual promise of every member to pay the certificate of every other member, there can be no vested right in any provision of the contract, either express or implied, that is not subject to and controlled by the duty of the member to pay the cost of his own insurance, for under no construction of a mutual contract can he demand more than he is willing to give." And in the Massachusetts case of Reynolds v. Royal Arcanum, where the same general reservation was made, and a subsequent amendment was adopted increasing the assessment, or at the member's option, reducing the benefits, the court held that the association could amend its by-laws in a reasonable way to accomplish the purposes for which the association was organized. The United States Supreme Court, in considering whether a similar change was an impairment of the contract, held that it was not, being necessary for the continuance of the company, and because "there was no vested right to a continuation of a plan of insurance which experience might demonstrate would result disastrously to the company and its members." The majority of the cases seem to be in accord with the rule of the cases referred to above,

4

'Niblack on Mutual Benefit Societies, sec. 11; Bacon, Life and Accident Insurance, sec. 115.

285 Wash. 665 (1915).

192 Mass. 150 (1906).

"Wright v. Minnesota Mutual Life Ins. Co., 193 U. S. 657 (1904).

Schmierer v. Mutual Reserve Fund Life Ass'n, 153 Cal. 208 (1908); Fullenwider v. Supreme Council, R. L., 180 Ill. 621 (1899); Champion v. Hannahan, 138 Ill. App. 387 (1908); Williams v. Supreme Council, C. M. B., 152 Mich. I

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