been refused to others, and especially to medical advisers." And in many of the states of the Union, statutes similar in substance and effect to the statute quoted in the opinion in the principal case have been enacted. No such statute seems to have been yet enacted in the state of Texas: Steagald v. State, 22 Tex. App. 464. The object of these statutes seems to be to place communications made to physicians in the course of their professional employment upon the same footing with communications made by clients to their attorneys in the course of their employment: Edington v. Mutual L. I. Co., 5 Hun, 1; Masonic Mutual B. Ass'n v. Beck, 77 Ind. 203; 40 Am. Rep. 295. Under the provisions of those statutes, a physician cannot be permitted to give in evidence in a court of justice any information necessarily acquired by him in the discharge of his professional duties, to the prejudice of his patient or of the latter's representative: Excelsior Mut. Ass'n v. Riddle, 91 Ind. 84; Johnson v. Johnson, 14 Wend. 637.

A physician or surgeon will not be permitted to testify to facts necessary to enable him to prescribe for his patient, and which were communicated to him for the purpose of enabling him to perform his professional duty: Connecticut M. L. I. Co. v. Union Trust Co., 112 U. S. 250; Briggs v. Briggs, 20 Mich. 34; Norton v. City of Moberly, 18 Mo. App. 457; Johnson v. Johnson, 4 Paige, 460; Sloane v. New York Central R. R. Co., 45 N. Y. 125; Dilleber v. Home L. 1. Co., 69 N. Y. 256; 25 Am. Rep. 182; Cahen v. Continental L. I. Co., 41 N. Y. Super. Ct. 296. And a physician who attends a sick person in consultation with the patient's regular physician comes within this rule: Renihan v. Dennin, 103 N. Y. 573; 57 Am. Rep. 770.

The physician is prohibited from disclosing information acquired by him in any way during his attendance upon his patient in his professional character, and necessary to enable him to prescribe for the latter, whether such information be received by direct communication from the patient himself, or be acquired by the physician through his own observation or examination: Rapalje's Law of Witnesses, sec. 272; Masonic M. B. Ass'n v. Beck, 77 Ind. 203; 40 Am. Rep. 295; Williams v. Johnson, 112 Ind. 273; Heuston v. Simpson, 115 Ind. 72; 7 Am. St. Rep. 409; Briggs v. Briggs, 20 Mich. 34; Gartside v. Connecticut M. L. I. Co., 76 Mo. 446; 43 Am. Rep. 765; Linz v. Massachussetts M. L. 1. Co., 8 Mo. App. 363; Streeter v. City of Breckenridge, 23 Mo. App. 244; Corbett v. St. Louis etc. R'y Co., 26 Mo. App. 621; Edington v. Mutual L. I. Co., 67 N. Y. 185; Grattan v. Metropolitan L. I. Co., 80 N. Y. 281; 36 Am. Rep. 617; Grattan v. Metropolitan L. I. Co., 92 N. Y. 274; 44 Am. Rep. 372; Edington v. Mutual L. I. Co., 5 Hun, 1; Darragh's Will, 52 Hun, 591. In the case last cited it was said that the intention of the statute is to protect all communications made by a patient to her physician which she supposed or had reason to suppose were protected by the provisions of the law. In delivering the opinion of the court in Gartside ▼. Connecticut M. L. I. Co., 76 Mo. 446, 43 Am. Rep. 765, Norton, J., said: "Information acquired by a physician from inspection, examination, or observation of the person of the patient, after he has submitted himself to such examination, may as appropriately be said to be acquired from the patient as if the same information had been orally communicated by the patient." And Miller, J., in delivering the opinion of the court in Edington v. Mutual L. I. Co., 67 N. Y. 194, said: "The statute in question, being remedial, should receive a liberal interpretation, and not be restricted by any technical rule. When it speaks of information, it means not only communications received from the lips of the patient, but such knowledge as may be acquired from the patient himself, from the statement of others who may surround him at the

time, or from observation of his appearance and symptoms. Even if the patient could not speak, or his mental powers were so affected that he could not accurately state the nature of his disease, the astute medical observer would readily comprehend his condition. Information thus acquired is clearly within the scope and meaning of the statute." And in that case it was held that an offer of evidence was properly excluded, although the testimony was expressly limited to what the witness knew from his attendance upon the patient as his physician, independent of any information given or statements made by the patient.

The statutes of the various states regarding the disqualification of physi cians to testify do not make such qualifications general, but limit it to infor mation acquired by them in attending patients in a professional capacity, and necessary to enable them to prescribe for their patients or to otherwise discharge their professional duties. These statutes have, so far as we can ascertain, been rather strictly construed than otherwise, and physicians have been compelled to testify in all cases where the communication was made to them unnecessarily, and was not for the purpose of enabling them to perform their duties to their patients. Thus, perhaps, the first case construing the statute was that of Hewitt v. Prime, 21 Wend. 79, in which it was determined that a physician consulted for the purpose of procuring an abortion must testify, "because the information given him is not essential to enable him to prescribe for a patient."

In Michigan, a plaintiff, suing for damages for personal injuries, which he claimed had been inflicted on him by the defendant, having made a statement to a physician showing that those injuries, or some of them, existed prior to the alleged violence of the defendant, it was held that the trial court erred in declining to compel the physician to testify, it not appearing by the record that it was necessary information to enable the physician to prescribe: Campau v. North, 39 Mich. 606; 33 Am. Rep. 433. So in Arkansas, it has been determined that a physician attending a woman in confinement may testify that she told him that she was not married. In this case, however, the opinion of the court may be regarded as a dictum, because the confessions made to the physician were also made to several other persons who were permitted to testify concerning them, and the appellate court was therefore of the opinion that the action of the trial court, including the testimony of the physician, had not been prejudicial to the plaintiff, and therefore did not entitle him to a reversal: Collins v. Mach, 31 Ark. 494. In Hoyt v. Hoyt, 112 N. Y. 493, the court of appeals of New York determined that a physician who had attended a testator should be compelled to testify to interviews with the latter concerning the condition of his daughter. The surrogate court of the county of New York has also determined that a physician should be directed to testify concerning declarations of a testator in regard to the making of a will, and the physician's advice to him on that subject: In re O'Neill, 26 N. Y. 242; 7 N. Y. Super. Ct. 197.

In construing the statute of New York on this subject, the court of appeals said: "Before information can be excluded under this statute, it must appear that it was such as the physician acquired in some way while professionally attending a patient; and it must also be such as was necessary to enable him to prescribe as a physician, or to do some act as a surgeon. It is not sufficient, to authorize the exclusion, that the physician acquired the information while attending his patient; but it must be the necessary information mentioned. If the physician has acquired any information which was not necessary to enable him to prescribe, or to act as a surgeon, such information

he can be compelled to disclose, although he acquired it while attending the patient; and before the exclusion is authorized, the facts must in some way appear upon which such exclusion can be justified: Edington v. Etna Life Ins. Co., 77 N. Y. 569.

Woods, J., in Masonic M. B. Ass'n v. Beck, 77 Ind. 203, 40 Am. Rep. 295, referring to this opinion, said: "But the language of the opinion in that case, upon which stress is laid, does not express the opinion of the court, but only of the judge who wrote it, the other judges concurring in the result only." And Earl, J., himself, in delivering the opinion of the court in the recent case of Renihan v. Dennin, 103 N. Y. 573, 57 Am. Rep. 770, said: "It is also claimed that the statute should be so construed as only to prohibit the disclosures by a physician of any information of a confidential nature obtained by him from his patient while attending him in a professional capacity. Such was the view of the statute taken by me in my opinion in Edington v. Etna L. I. Co., 77 N. Y. 564; but my brethren were then unwilling to concur with me in that view. When the same question again came before the court, in Grattan v. Metropolitan L. I. Co., 80 N. Y. 281, 36 Am. Rep. 617, I again attempted to enforce the same view upon my brethren, and again failed, and it was then distinctly held that the statute could not be confined to information of a confidential nature, and that the court was bound to follow and give effect to the plain language, without interpolating the broad exception contended for."

These remarks, considered independently of the circumstances in which they were uttered and the cases to which they were applied, justify the inference that all information acquired by a physician, no matter how irrele vant to the performance of his duties, must be kept secret by him, and that he will not be required nor permitted to divulge it as a witness. In the case referred to above, from 77 Indiana, the statute under consideration was very general in its terms, and declared physicians were not competent witnesses "as to matters confided to them in the course of their profession, unless with the consent of the party making such confidential communication." But the subject of contention before the court was, whether the physician could be required to disclose facts learned by him from his examination and observation of his patient, made in the performance of his duty in treating such patient for ailments from which he was then suffering; and the court very properly held that what he learned from observation and examination was protected to the same extent as if it had been communicated by his patient in words. The cases in 103 New York and 80 New York, cited above, involved similar questions, and are authority for nothing, except that a physician may not testify to the appearance or condition of a patient, where his opinion was formed or his information acquired while he was attending such patient professionally, and they do not at all conflict with the statement made in other cases, that such information acquired by a physician, and not necessary, nor by him represented to his patient to be necessary, to enable him to discharge his professional functions, is not privileged. Whenever it is apparent that an admission or a declaration was made or information given by the patient to his physician, he may testifiy as to such declaration, admission, or information, if it was not necessary to enable him to prescribe as a physician or act as a surgeon: Collins v. Mack, 31 Ark. 684; Valensin v. Valensin, 73 Cal. 106; Campau v. North, 39 Mich. 606; 33 Am. Rep. 433; Scripps v. Foster, 41 Mich. 742; Kendall v. Gray, 2 Hilt. 300; Staunton v. Parker, 19 Hun, 55; Brown v. Rone etc. R. R. Co., 45 Hun, 439; Will of O'Neil, 26 N. Y. St. Rep. 242. And to exclude a physician from testifying, it must appear that the infor

mation was acquired while he was being consulted professionally to obtain medical assistance: Babcock v. People, 15 Hun, 347. But in People v. Brower, 53 Hun, 217, the defendant, after having attempted to commit an abortion on a woman, ran for a doctor to attend her, and while in the physician's office told him what he had done, in order that he might be able to act for her promptly upon their arrival at her residence; and it was held that the communication was privileged. So in Guptill v. Verback, 58 Iowa, 98, which was an action for breach of promise of marriage, a physician, sworn as a witness, was asked if the plaintiff had consulted him in respect to getting rid of a child with which she was pregnant at the time, and it was held, there being no showing of an unlawful purpose, that the communication was privileged. The decision of the court was here placed on the ground that it might have been necessary to produce a miscarriage to save plaintiff's life, and that she had the right to consult a physician, and to have her disclosures protected as privileged until her purpose was shown to be unlawful. A physician may be compelled to testify as to the result of a post-mortem examination made by him: Summers v. State, 5 Tex. App. 365.

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STATUTE APPLIES IN PROBATE PROCEEDINGS. In the case of Allen v. Public Administrator, 1 Bradf. 221, 224, the surrogate said: "I do not, in the first place, think that testamentary cases are within the reason or the inten tion of the statute in question." See also Whelpley v. Loder, 1 Demarest, 368. This doctrine has, however, been expressly denied by the court of appeals in several cases, and it is now well settled by the great weight of authority that the statute does apply in probate proceedings, that death does not remove the seal of secrecy from disclosures made by a patient to his physician, and that an attending physician may not, in an action to set aside a will, testify against objection as to the mental and physical condition of the testator, nor divulge, in such action, any information acquired by him while in the discharge of his professional duty: Masonic M. B. Ass'n v. Beck, 77 Ind. 203; 40 Am. Rep. 295; Pennsylvania L. 1. Co. v. Wiler, 100 Ind. 92; 50 Am. Rep. 769; Heuston v. Simpson, 115 Ind. 62; 7 Am. St. Rep. 409; Fraser v. Jennison, 42 Mich. 206; Groll v. Tower, 85 Mo. 249; 55 Am. Rep. 358; Westover v. Etna L. I. Co., 99 N. Y. 56; 52 Am. Rep. 1; Renihan v. Dennin, 103 N. Y. 573; 57 Am. Rep. 770; Matter of Coleman, 111 N. Y. 220; Loder v. Whelpley, 111 N. Y. 239. Earl, J., in delivering the opinion of the court in Westover v. Etna L. I. Co., 99 N. Y. 59, said: "The purpose of the law would be thwarted, and the policy intended to be promoted thereby would be defeated, if death removed the seal of secrecy from the communications and disclosures which a patient should make to his physician, or a client to his attorney, or a penitent to his priest. Whenever the evidence comes within the purview of the statutes, it is absolutely prohibited, and may be objected to by any one, unless it be waived by the person for whose benefit and protection the statutes were enacted. After one has gone to his grave, the living are not permitted to impair his fame and disgrace his memory by dragging to the light communications and disclosures made under the seal of the statutes. An executor or administrator does not represent the deceased for the purpose of making such a waiver. He represents him simply in reference to rights of property, and not in reference to those rights which pertain to the person and character of the testator."

WAIVER OF PRIVILEGE. The object of the statute is not to absolutely disqualify the physician from testifying, but to enable the patient to secure medical aid without betrayal of confidence. The patient may therefore waive objection, and permit the physician to testify; and his calling the physician to

testify is a waiver: Morris v. Morris, 119 Ind. 341; Pennsylvania M. L. I. Co. v. Wiler, 100 Ind. 92; 50 Am. Rep. 769; Grand Rapids & I. R. R. Co. v. Martin, 41 Mich. 667; Carrington v. City of St. Louis, 89 Mo. 209; Blair v. Chicago & A. R. R. Co., 89 Mo. 334; Territory v. Corbett, 3 Mont. 50; Allen v. Public Administrator, 1 Bradf. 221. But including the statements in the prelimi nary proofs in an insurance case is not a waiver: Dreier v. Continental L. 1. Co., 24 Fed. Rep. 670. Nor is the presence of third parties a waiver, when. ever their presence is in aid of the sick person, because then it does not appear that the declarations made before them evince that the patient was willing to renounce the secrecy secured by the statute: Cahen v. Continental L. I. Co., 41 N. Y. Super. Ct. 296. The privilege must, however, be claimed, and the proposed evidence objected to. If this is not done, the objection will be deemed to be waived, and the evidence will not be stricken out: Hoyt v. Hoyt, 112 N. Y. 493. And where the privilege of the statute has been waived by the patient, and the waiver has been acted upon, it cannot be recalled, and the patient is not privileged to forbid the repetition of the testimony on a second trial of the case: McKinney v. Grand St. etc. R. R. Co., 104 N. Y. 352. WHO MAY WAIVE PRIVILEGE. It is settled by the recent New York decisions that, under the statutes of that state, the only person who can waive the prohibition is the patient himself, from whom the physician acquired the information, and that after his death the prohibition cannot be waived by any. one: Westover v. Etna L. Ins. Co., 99 N. Y. 56; 52 Am. Rep. 1; Renihan v. Dennin, 103 N. Y. 573; 57 Am. Rep. 770; Loder v. Whelpley, 111 N. Y. 239. In the case of Renihan v. Dennin, 103 N. Y. 573, 57 Am. Rep. 770, Earl, J., who delivered the opinion of the court, said: "It is probably true that the statute, as we feel obliged to construe it, will work considerable mischief. In testamentary cases, where the contest relates to the competency of the testator, it will exclude evidence of physicians, which is generally the most important and decisive. In actions upon policies of life insurance, where the inquiry relates to the health and physical condition of the insured, it will exclude the most reliable and vital evidence which is absolutely needed for the ends of justice. But the remedy is with the legislature, and not with the courts." In other states it is held that the personal representative of the deceased patient may, for the protection of the interests claimed under him, waive the prohibition of the statute: Masonic M. B. Ass'n v. Beck, 77 Ind. 203; 40 Am. Rep. 295; Pennsylvania M. L. Ins. Co. v. Wiler, 100 Ind. 92; 50 Am. Rep. 769; Morris v. Morris, 119 Ind. 341; Fraser v. Jennison, 42 Mich. 206; Groll v. Tower, 85 Mo. 249; 55 Am. Rep. 358. See also Staunton v. Parker, 19 Hun, 55. In Groll v. Tower, 85 Mo. 249, 55 Am. Rep. 358, Ewing, C., delivering the opinion, said: "Where the evidence of the attending physician is offered by the patient or his representatives, it is competent and admissible. Where it is offered by the opposite party, the physician cannot testify, against the objection of the patient or his representatives."

CRIMINAL CASES, STATUTE APPLICABLE IN. - In New York it has been held that the statute applies to criminal cases: People v. Stout, 3 Park. Cr. 670; People v. Murphy, 101 N. Y. 126; 54 Am. Rep. 661; People v. Brower, 53 Hun, 217. In People v. Murphy, 101 N. Y. 126, 54 Am. Rep. 661, which was a prosecution for abortion, the physician, who, after the commission of the crime, was selected by the public prosecutor to attend and examine the woman, and who did attend and examine her with her consent, was allowed to testify, as a witness for the prosecution, to his opinion, founded on his observation of the woman, and her narration of the circumstances, that an abortion had been committed. The woman was alive at the