ally in attending a patient cannot be called upon for an opinion based upon such information.94 And the information thus excluded includes the condition of an injured patient, whether obvious or otherwise, 95 as well as statements made by him as to the manner in which the injury occurred;96 and the nature of the patient's injuries97 or disease,98 and the cause of death,99 are all strictly within statutory prohibition. "Thompson v. Ish, 99 Mo. 160, 17 Am. St. Rep. 552, 12 S. W. 510; Grattan v. Metropolitan L. Ins. Co. 28 Hun, 430. Jones v. Brooklyn, B. & W. E. R. Co. 21 N. Y. S. R. 169, 3 N. Y. Supp. 253; Shuman v. Supreme Lodge. K. H. 110 Iowa, 480, 81 N. W. 717; Streeter v. Breckenridge, 23 Mo. App. 244. But an inquiry addressed on cross-examination to a physician in an action for a personal injury, as to whether an examination of the person of the plaintiff, to which he had testified, was in his opinion a full and fair examination, is proper; though refusal to permit it is not reversible error, where another physician had testified that it was an accurate measurement, and his testimony had not been contradicted. McSwyny v. Broadway & S. A. R. Co. 27 N. Y. S. R. 363, 7 N. Y. Supp. 456. New York, C. & St. L. R. Co. v. Mushrush, 11 Ind. App. 192, 37 N. E. 954, 38 N. E. 871; Pennsylvania Co. v. Marion, 123 Ind. 415, 7 L. R. A. 687, 18 Am. St. Rep. 330, 23 N. E. 973; Keist v. Chicago G. W. R. Co. 110 Iowa, 32, 81 N. W. 181; Raymond v. Burlington, C. R. & N. R. Co. 65 Iowa, 152, 21 N. W. 495. And see Enright v. Brooklyn Heights R. Co. 26 App. Div. 538, 50 N. Y. Supp. 609. Contra, Green v. Metropolitan Street R. Co. 171 N. Y. 201, 89 Am. St. Rep. 807, 63 N. E. 958. are not privileged. Kansas City, Ft. 8. & M. R. Co. v. Murray, 55 Kan. 336, 40 Pac. 646. "Corbett v. St. Louis, I. M. & 8. R. Co. 26 Mo. App. 621. Jones v. Preferred Bankers' Life Assur. Co. 120 Mich. 211, 79 N. W. 304; Lammiman v. Detroit Citizens' Street R. Co. 112 Mich. 602, 71 N. W. 153; Nelson v. Nederland L. Ins. Co. 110 Iowa, 600, 81 N. W. 807; Redmond v. Industrial Ben. Asso. 78 Hun, 104, 28 N. Y. Supp. 1075, Affirmed in 150 N. Y. 167, 44 N. E. 769. Contra, Metropolitan L. Ins. Co. v. Howle, 68 Ohio St. 614, 68 N. E. 4. And permitting physicians in an action upon an insurance policy, in which a breach of warranty and false representations were alleged, in that the insured was suffering from a disease of the throat and tongue at the time of the application, to testify that they had treated him for some disease for a long time anterior to the date of the policy, and that they were specialists, and accustomed to treat cancers and diseases of the tongue and throat, is a violation of the spirit of the statutory provision prohibiting the disclosure by physicians of confidential information, though they were not called upon to tell for what they treated him. McCormick v. United Life & Acci. Ins. Asso. 79 Hun, 340, 29 N. Y. Supp. 364. But a physician who attended a person after an injury by collision with a But an affidavit of a physician in railroad train is not incompetent to tes- proofs of loss under an insurance poltify in an action for the injury that icy, stating that he treated the insured the plaintiff stated to him that, as he for a certain disease, from which he approached the railroad track, he heard died, though such statement is unnecpersons shouting to him, and saw a essary and gratuitous, is not priviman swing his hat, but did not think leged, and should be received in eviwhere he was until the train was on dence as in the nature of an admission. him; such information not being neces- Nelson v. Nederland L. Ins. Co. 110 sary to enable the physician to pre- lowa, 600, 81 N. W. 807. scribe. Brown v. Rome, W. & O. R. Co. 45 Hun, 439. And where a surgeon is called to dress and attend to a wound received by a brakeman, statements made by the brakeman to him with respect to the position which he occupied immediately preceding the occurrence of the accident And permitting a physician to give the date of a visit for the purpose of fixing the time of other events is not error.. Dalman v. Koning, 54 Mich. 320, 20 N. W. 61. "Grattan v. Metropolitan L. Ins. Co. 80 N. Y. 281, 36 Am. Rep. 617; Cahen v. Continental L. Ins. Co. 69 N. Y. 300 Confidential communications between a physician and patient which are privileged, however, are strictly limited to those made by the patient to the physician which were necessary to enable the physician to act for the patient in his professional capacity. It is not sufficient merely that the physician acquired the information while attending the patient. And information, though acquired by a physician in his professional capacity, is not privileged, where it consisted merely of facts which were open to the observation of any person who had seen and conversed with the patient. Likewise, occurrences outside of the relation of physician and patient, or before the patient submits himself to the physician, or the physician addresses himself to his duty, are not privileged ;* nor are observations of the physician, 'Territory v. Corbett, 3 Mont. 50; Collins v. Mack, 31 Ark. 684; Re Black, 132 Cal. 392, 64 Pac. 695; Kansas City, Ft. S. & M. R. Co. v. Murray, 55 Kan. 336, 40 Pac. 646; Briesenmeister v. Supreme Lodge, K. of P. 81 Mich. 525, 45 N. W. 977; Campau v. North, 39 Mich. 606, 33 Am. Rep. 433; James v. Kansas City, 85 Mo. App. 20; Kendall v. Grey, 2 Hilt. 300; Edington v. Etna L. Ins. Co. 77 N. Y. 564; Re O'Neil, 26 N. Y. S. R. 242, 7 N. Y. Supp. 197; Steele v. Ward, 30 Hun, 555; Herrington v. Winn, 60 Hun, 235, 14 N. Y. Supp. 612; De Jong v. Erie R. Co. 43 App. Div. 427, 60 N. Y. Supp. 125; Brown v. Rome, W. & O. R. Co. 45 Hun, 439; Renihan v. Dennin, 103 N. Y. 573, 57 Am. Rep. 770, 9 N. E. 320; Griebel v. Brooklyn Heights R. Co. 68 App. Div. 204, 74 N. Y. Supp. 126; Deutschmann v. Third Ave. R. Co. 87 App. Div. 505, 84 N. Y. Supp. 887. Edington v. Etna L. Ins. Co. 77 N. Y. 564; Green v. Metropolitan Street R. Co. 171 N. Y. 201, 89 Am. St. Rep. 807, 63 N. E. 958. Contra, Kling v. Kansas, 27 Mo. App. 231. And a physician cannot decline to answer a hypothetical question which did not involve the statement of any matter or information which he had learned or acquired in a professional capacity, on the ground that it might open the door to cross-examination which might make it necessary for him to reveal professional secrets confided to him. Valensin v. Valensin, 73 Cal. 106, 14 Pac. 397. But professional information upon the part of a physician concerning a patient is not rendered admissible in evidence against the claim that it was privilege, by the fact that the physi cian had often visited the patient as a friend, and that some of his impressions may have been gained on friendly visits, where he is unable to separate the knowledge which he acquired as a physician from that which he acquired as a friend. Re Darragh, 52 Hun. 591, 5 N. Y. Supp. 58. Staunton v. Parker, 19 Hun, 55; Burley v. Barnhard, 9 N. Y. S. R. 587; Herrington v. Winn, 60 Hun, 235, 14 N. Y. Supp. 612; Steele v. Ward, 30 Hun, 555; Re Loewenstine, 2 Misc. 323, 21 N. Y. Supp. 931; Autauga County v. Davis, 32 Ala. 703; Norton v. Moberly, 18 Mo. App. 457. But it is only when the information of a physician or surgeon concerning a patient is such as is apparent on that casual inspection which anyone might make without disclosure of any kind on the part of the patient that it can be said that there was no information acquired from the patient under conditions expressed in the statute. Linz v. Massachusetts Mut. L. Ins. Co. 8 Mo. App. 363. And in Kling v. Kansas, 27 Mo. App. 231, it was held that there is no distinction between external signs connected with the patient, which all may see, and hidden or secret signs which a physician, as such, alone can see, with reference to the question as to what information is necessary to enable a physician to prescribe; that the test is, how was the information acquired; and that it does not matter that it could have been acquired in a different way. 'Linz v. Massachusetts Mut. L. Ins. Co. 8 Mo. App. 363; Hamilton v. Crowe, 175 Mo. 634, 75 S. W. 389; Re Loewen stine, 2 Misc. 323, 21 N. Y. Supp. 931; Jennings v. Supreme Council, L. A. or declarations of the patient, directed, not to the purpose of procuring information which would enable the physician to act, but to some entirely foreign purpose,5 as, for example, information acquired by a physician in a conversation with his patient while calling upon him to collect a bill for services previously rendered. And a physician may be used as a witness to prove facts within his knowledge other than those which came to him peculiarly as a physician, such as the mere fact of treatment of a patient by the physician, and the number and dates of his visits. Nor is a physician, called upon to attend a patient, precluded from testifying as to the patient's condition at that time with regard to sobriety, where that condition had nothing to do with his employment.10 And a family physician of a testator may testify in a will contest to family events in no way connected with Benev. Asso. 81 App. Div. 76, 81 N. Y. Supp. 90; Steele v. Ward, 30 Hun, 555; Herries v. Waterloo, 114 Iowa, 374, 86 N. W. 306; Seifert v. State, 160 Ind. 464, 98 Am. St. Rep. 340, 67 N. E. 100. 'Hoyt v. Hoyt, 9 N. Y. S. R. 731, Affirmed in 112 N. Y. 493, 20 N. E. 402; Re O'Neil, 26 N. Y. S. R. 242, 7 N. Y. Supp. 197; Pandjiris v. McQueen, 37 N. Y. S. R. 602, 15 N. Y. Supp. 705; De Jong v. Erie R. Co. 43 App. Div. 427, 60 N. Y. Supp. 125; Coryell v. Stone, 62 Ind. 307; Hamilton v. Crowe, 175 Mo. 634, 75 S. W. 389; Metropolitan L. Ins. Co. v. Howle, 68 Ohio St. 614, 68 N. E. 4. A physician called to attend a woman in childbirth may testify in a bastardy proceeding with reference to alleged statements of the woman as to the parentage of her child, such statements not being necessary to enable him to prescribe or act. People v. Cole, 113 Mich. 83, 71 N. W. 455; People ex rel. Mendelovich v. Abrahams, 88 N. Y. Supp. 924. And a statement made to his physician, by a person injured by being struck by a locomotive, that he did not observe the train until he was struck, is not privileged or incompetent. De Jong v. Erie R. Co. 43 App. Div. 427, 60 N. Y. Supp. 125. 'Bower v. Bower, 142 Ind. 194, 41 N. E. 523; Seifert v. State, 160 Ind. 464, 67 N. E. 100; Holloway v. Kansas City (Mo.) 82 S. W. 89. 'Corbett v. St. Louis, I. M. & S. R. Co. 26 Mo. App. 621. "Dittrich v. Detroit, 98 Mich. 245, 57 N. W. 125; Briesenmeister v. Supreme 8 Lodge, K. of P. 81 Mich. 525, 45 N. W. 977; Brown v. Metropolitan L. Ins. Co. 65 Mich. 306, 8 Am. St. Rep. 894, 32 N. W. 610; Deutschmann v. Third Ave. R. Co. 87 App. Div. 505, 84 N. Y. Supp. 887; Numrich v. Supreme Lodge, K. & L. H. 24 N. Y. S. R. 287, 3 N. Y. Supp. 552; Nelson v. Nederland L. Ins. Co. 110 Iowa, 600, 81 N. W. 807; Price v. Standard Life & Acci. Ins. Co. 90 Minn. 264, 95 N. W. 1118; Sovereign Camp, W. of W. v. Grandon, 64 Neb. 39, 89 N. W. 448; Metropolitan L. Ins. Co. v. Howle, 68 Ohio St. 614, 68 N. E. 4. And the testimony of a physician in an action for tort, that the plaintiff had called upon him, and that he had examined her, and that she told him she had sued for her injuries, and there was going to be a lawsuit over it, and that she would want him as a witness,— is not incompetent as a privileged communication. Cooley v. Foltz, 85 Mich. 47, 48 N. W. 176. 'Price v. Standard Life & Acci. Ins. Co. 90 Minn. 264, 95 N. W. 1118; Sovereign Camp, W. of W. v. Grandon, 64 Neb. 39, 89 N. W. 448; Deutschmann v. Third Ave. R. Co. 87 App. Div. 505, 84 N. Y. Supp. 887. 10 Kling v. Kansas, 27 Mo. App. 231; Lincoln v. Detroit, 101 Mich. 245, 59 N. W. 617. In Finnegan v. Sioux City, 112 Iowa, 232, 83 N. W. 907, however, it was held that the attending physician of a patient cannot be called upon to testify as to whether or not, at the time he was attending his patient in his professional capacity, the patient was suf fering from delirium tremens. physical complaints or condition.11 Nor does the law rendering incompetent privileged communications to a physician affect the admissibility of prescriptions of a physician in the hands of a druggist, on identification by him.12 It will be assumed, however, from the existence of the relationship of physician and patient, in the absence of evidence to the contrary, that information acquired by the physician was imparted for the purpose of aiding him in the performance of his professional employment; and it is not necessary to show in the first instance, by formal proof, that the information was necessary to enable him to prescribe.13 Though where a party seeks to exclude evidence on the ground that it is privileged as a professional communication, the general burden rests with him to bring the case within the purview of the statute.11 572. Existence of relationship of physician and patient.-To render information of a physician or surgeon incompetent on the "Re Boury, 8 N. Y. S. R. 809; Re O'Neil, 26 N. Y. S. R. 242, 7 N. Y. Supp. 197; Re Halsey, 2 Connoly, 220, 9 N. Y. Supp. 441. But a physician cannot testify in an action to set aside a will, as to the mental condition of his patient, from his knowledge derived from conversations with her, the information thus received being confidential. Gurley v. Park, 135 Ind. 440, 35 N. E. 279. Deutschmann v. Third Ave. R. Co. 87 App. Div, 505, 84 N. Y. Supp. 887. But the introduction in evidence of the prescriptions of a physician, not limited to the purpose of fixing their dates, is improper as an indirect attempt to violate the privilege; since the nature of the malady of the patient might thereby be made known to those skilled in medicine. Nelson v. Nederland L. Ins. Co. 110 Iowa, 600, 81 N. W. 807. Edington v. Mutual L. Ins. Co. 67 N. Y. 185; Grattan v. Metropolitan L. Ins. Co. 80 N. Y. 281, 36 Am. Rep. 617; Sloan v. New York C. R. Co. 45 N. Y. 125; Feeney v. Long Island R. Co. 116 N. Y. 375, 5 L. R. A. 544, 22 N. E. 402; Re Darragh, 52 Hun, 591, 5 N. Y. Supp. 58; Brigham v. Gott, 20 N. Y. S. R. 420, 3 N. Y. Supp. 518; Jones v. Brooklyn, B. & W. E. R. Co. 21 N. Y. S. R. 169, 3 N. Y. Supp. 253; State v. Kennedy, 177 Mo. 98, 75 S. W. 979; Munz v. Salt Lake City R. Co. 25 Utah, 220, 70 Pac. 852. And information obtained by a physician in his professional capacity is not deprived of the statutory privilege against disclosure by the fact that it was obtained at a first interview, and that the doctor had not known the patient previous to that interview. Grattan v. Metropolitan L. Ins. Co. 24 Hun, 43. "People v. Koerner, 154 N. Y. 355, 48 N. E. 730; Edington v. Etna L. Ins. Co. 77 N. Y. 564; People v. Schuyler, 43 Hun, 88; Wiel v. Cowles, 45 Hun, 307; Heath v. Broadway & 8. A. R. Co. 25 Jones & S. 496, 8 N. Y. Supp. 863; Deutschmann v. Third Ave. R. Co. 87 App. Div. 505, 84 N. Y. Supp. 887; Stowell v. American Co-operative Relief Asso. 1 Silv. Sup. Ct. 246, 5 N. Y. Supp. 233; Griffiths v. Metropolitan Street R. Co. 171 N. Y. 106, 63 N. E. 808; Linz v. Massachusetts Mut. L. Ins. Co. 8 Mo. App. 363; James v. Kansas City, 85 Mo. App. 20. The evidence of a physician will not be held incompetent as privileged merely because he is a physician, where the facts which, under the statute, would render him incompetent, are not in any way shown. Bowles v. Kansas City, 51 Mo. App. 416. Before permitting the examination of a physician to proceed where privilege is asserted, the court will afford the party asserting it an opportunity to ascertain by whom the physician was called, so that the question of privilege can properly be passed upon. Tracey v. Metropolitan Street R. Co. 49 App. Div. 197, 63 N. Y. Supp. 242, Affirmed in 168 N. Y. 653, 61 N. E. 1135. 17 ground of privilege there must have been a relation of confidence between them to be abused; there is no privilege in the absence of the relationship of physician and patient.15 And a dead man is not a patient capable of sustaining the relation of confidence toward a physician, which is the foundation of the rule excluding privileged communications, so as to exclude the testimony of the physician as to examination after death.16 And the signing of a will as a witness is not a professional act which will render incompetent information acquired by a physician at the time of acting as a witness.1 Whenever a physician has attended a patient, however, under circumstances calculated to induce the opinion that the attendance was of a professional nature, and the patient has yielded to examination, or made communications which he would not otherwise have made, the seal of secrecy is set on the transaction.18 And knowledge of a physician as to the condition of his patient, discovered during attendance, is not removed from the protection of the statute by the fact that he was called with reference to an entirely different trouble;19 or by the fact that the physician's services were forced upon the patient against his will;20 or by the fact that the physician was called at the instance of, and paid by, the employer of the person examined, not for the purpose of prescribing, but to ascertain his ability.21 Nor is the privilege affected by the fact that the physician was employed and paid by the person who caused the injury, and not by the person injured;22 though "Scripps v. Foster, 41 Mich. 742, 3 N. W. 216; Jacobs v. Cross, 19 Minn. 523, Gil. 454; Stowell v. American Co-operative Relief Asso. 1 Silv. Sup. Ct. 246, 23 N. Y. S. R. 706, 5 N. Y. Supp. 233; Babcock v. People, 15 Hun, 347; Mar v. Manhattan R. Co. 56 Hun, 575, 10 N. Y. Supp. 159. And where an attorney engaged in the duties of his profession visited the county clerk's office, and while there requested the county clerk, who was a physician, to look at an eruption upon his skin, and the county clerk did so gratuitously, it cannot be said that he attended the attorney as a patient, in his professional character, so as to render his opinion as to the character and cause of the eruption inadmissible in evidence. Edington v. Ætna L. Ins. Co. 13 Hun, 543. The fact of treatment is the decisive test of privilege, as to whether or not the relationship of physician and patient existed. Meyer v. Supreme Lodge, K. of P. (N. Y.) 64 L. R. A. 839, 70 N. E. 111. 19 Nelson v. Oneida, 156 N. Y. 219, 66 Am. St. Rep. 556, 50 N. E. 802; Re Redfield, 116 Cal. 637, 48 Pac. 794; Re Flint, 100 Cal. 391, 34 Pac. 863. Meyer v. Supreme Lodge, K. of P. (N. Y.) 64 L. R. A. 839, 70 N. E. 111, Affirming 82 App. Div. 359, 81 N. Y. Supp. 813. "Grattan v. Metropolitan L. Ins. Co. 24 Hun, 43. New York, C. & St. L. R. Co. v. Mushrush, 11 Ind. App. 192, 37 N. E. 954, 38 N. E. 871; Freel v. Market Street Cable R. Co. 97 Cal. 40, 31 Pac. 730; Keist v. Chicago G. W. R. Co. 110 Iowa, 18 Harrison v. Sutter Street R. Co. 116 32, 81 N. W. 181; Raymond v. BurlingCal. 156, 47 Pac. 1019. "Re Freeman, 46 Hun, 458, 12 N. Y. Supp. 175. 18 People v. Stout, 3 Park. Crim. Rep. 670. And see Munz v. Salt Lake City R. Co. 25 Utah, 220, 70 Pac. 852. ton, C. R. & N. R. Co. 65 Iowa, 152, 21 N. W. 495; Battis v. Chicago, R. I. & P. R. Co. (Iowa) 100 N. W. 543; Weitz v. Mound City R. Co. 53 Mo. App. 39; Griffiths v. Metropolitan Street R. Co. 63 App. Div. 86, 71 N. Y. Supp. 406; |