Opinion
May 9, 1940.
Action by Jacob Bolts against the Union Central Life Insurance Company. On motion treated as one for reargument, and on motion for new trial.
Motions denied.
Murray M. Brodslcy, of New York City, for plaintiff.
House, Grossman, Vorhans Hemley, of New York City (Leo J. Rosett, of New York City, of counsel), for defendant.
Treating the motion as one for reargument, I think it must be denied. Dr. Haber's testimony to the effect that decedent told him that she did not care to live was properly admitted. Dr, Haber testified that the statement made to him was wholly unnecessary to the treatment of the decedent-Indeed Dr. Haber already knew that decedent had attempted suicide. He knew exactly what to treat decedent for, before any statement by decedent was made to him. It made no difference in the treatment, whether the poison was taken by accident or with suicidal intent.
[2-5] Section 354, Civil Practice Act, may not be read alone to determine the admissibility of Dr. Haber's testimony. It must be read together with section 352, Civil Practice Act. So the Court of Appeals did in Meyer v. Supreme Lodge Knights of Pythias, 178 N.Y. 63, 70 N.E. 111, 64 L.R.A. 839. The Appellate Division did likewise (82 App, Div. 359, 81 N.Y.S. 813). Reading both sections together, the rale may be slated as follows:
1. A physician is barred from testifying as to any fact elicited, which fact is necessary to his diagnosis or treatment, unless the privilege is waived, and this rule applies whether the patient is alive or dead, at the time the testimony is given.
2. A physician is privileged to testify to any fact that is not necessary to his diagnosis or treatment, whether the patient is alive or dead at the time the testimony is given.
3. Notwithstanding the foregoing rules, if the patient is dead, the physician may not testify to any fact that tends to disgrace the patient's memory or which is confidential.
In Meyer v. Supreme Lodge Knights of Pythias, supra, the Appellate Division put the exclusion of a physician's testimony that decedent attempted suicide, on the sole ground that it tended to disgrace the memory of decedent. In affirming this decision, the Court of Appeals,
did not put the exclusion of the doctor's testimony upon the ground that it tended to disgrace the memory of decedent, but on a different ground, that the statement of decedent was necessary to the physician, so that he would know how and for what to treat the patient.
In the Meyer case, the physician did not know how to treat the patient. It was because the patient told him that he took a poison known, as `"Rough on Rats"`, because he wanted to die that the physician was enabled 10 administer any treatment.
If the Court of Appeals had put the same ground for the exclusion of the doctor's testimony as the Appellate Division did, that reasoning would necessarily have to be followed by Trial Courts. But having expressly rejected the. ground for exclusion laid down by the Appellate Division, the Court of Appeals inferentially held that suicide is not such an immoral act, as of itself, tends to bring disgrace to the memory of the deceased.
While the statute prohibits a physician from testifying, even after a proper waiver, to any fact that would disgrace the memory of a decedent, it does not say whether the trial court or the jury must decide as to whether any given set of facts or circumstances tend to disgrace the memory of a decedent. Being a statute dealing with the admission and rejection of evidence, it is for the trial court to decide whether any set of facts or circumstances tend to disgrace the memory. If they do, they should be excluded from the consideration of the Jury. Mulligan v. Sinske, 156 App.Div. 35, 140 N.Y.S. 835, affirmed 214 N.Y. 678, 108 N.E. 1101; Matter of See's Estate, 241 App-Div. 525, 272 N.Y.S. 111.
But the will to die is of itself not such a disgrace to the memory of a decedent, as to be barred from the evidence. A person subject to an illness, brought about by no immorality, may feel that suicide would be a relief in putting an end to hopeless suffering.
Unless the circumstances leading to suicide are in themselves immoral or disgraceful, the mere act of self destruction, of itself, does not necessarily tend to disgrace the memory of decedent' At bar, Dr. Haber `testified to nothing that tended to bring such disgrace to her memory.
On Motion for New Trial.
[8, 9] The motion for a new trial, because of the misconduct of the Jury, is denied. This is not a case where the Jury went beyond the evidence, and took into consideration extraneous matters condemned by law. Adams Laundry Mach. Co. v. Prtmier, 74 Misc. 529, 1.34 N.Y. S. 475, affirmed 153 App.Div. MO, 138 N.Y.S. 1105, affirmed 214 N.Y. 637, 108 N.E. 1088; Buffalo Structural Steel Co. v. Dickinson, 98 App.Div. 355, 90 N.Y.S. 268; Consolidated Ice Mach, Co. v. Trenton Hygeian Ice Co., C-C, 57 F. 898; Matter of Vandcrhik, 127 App. Div. 408, 111 N.Y.S. 55S; Thomas v. Chapman, 45 Barb. 98; Watertown Bank Loan Co. v. Mix, 51 N.Y. 558; Yankelowitz v. Board of Education of City of New York, 140 Misc. 565, 251 N.Y.S. 146. Here, the Jury, if they did anything by way of experimenting, it was by experimenting with an exhibit in evidence, to see if any part of the insurance policy could be removed without leaving any trace of removal. That was one of the issues litigated. If the Jury did perform such an experiment, it resulted favorably to plaintiff, because it showed that the photostatic copy of the application blanks could not be removed without leaving some trace of the fact that it had been removed. If the experiment was performed by the Jury of which fact only an inference can be drawn, it probably resulted in eliminating the issue of fraud, and directing the Jury's attention to the issue of suicide, which was deckled adversely to plaintiff's contention. An experiment of that sort undertaken by a Jury is proper Henry v. Crook, 202 App.Div. 19, 195 N.Y.S. 642. Where the Jury's own initiative does no' harm to the complaining-party, and cannot by any reasonable inference affect the verdict, the error, if any, is deemed harmless. Gambon v. City of New York, 153 Misc. 401. 402, 274 N.Y.S. 653; Haight v. City of Elmira, 42 App.Div. 391, 395, 396, 59 N.Y.S. 193; People v. Kraus, 147 Misc. . 906, 909, 265 N.Y.S. 294.
The experiment of the Jury, if any was performed, was obvious to die moving' party, when the verdict was returned-If any point had been made thereof then, the Court could have investigated as to whether in fact an experiment had been made by the Jury, or whether the separation of the photostatic copy from the insurance policy was accidental. I see no merit in the contention, and do not believe it affected the Jury's verdict.