Capron v. Douglass

36 Citing cases

  1. Ortner v. Town of Darien

    146 App. Div. 884 (N.Y. App. Div. 1911)

    Held, first, that the testimony of defendant's witnesses, Drs. Johnson and Morse, in reference to their examination of plaintiff's physical condition with and in the presence of plaintiff's physician, Dr. Hummel, was competent and its exclusion presents reversible error. (See Capron v. Douglass, 193 N.Y. 11.) Second, that the holding of the trial court as matter of law that plaintiff, within the period required by statute, presented to the supervisor of defendant a verified statement of her claim against the town, was erroneous. All concurred, McLennan, P.J., upon the further ground that the defendant was not shown guilty of actionable negligence.

  2. Terier v. Dare

    146 App. Div. 375 (N.Y. App. Div. 1911)   Cited 1 times

    But we think the interposing of a general denial in an action brought against him cannot be so treated." (See, also, Capron v. Douglass, 193 N.Y. 11.) I think the ruling was prejudicial and calls for a reversal of the judgment.

  3. McKenney v. American Locomotive Co.

    164 App. Div. 625 (N.Y. App. Div. 1914)   Cited 2 times

    e at bar the plaintiff had sworn that Dr. Lord had treated his eye, and in fact had treated both eyes immediately after the accident; that the right eye was swollen, it seemed to him, as large as his head; that Dr. Lord treated him for some time, and had treated him since; that he doctored the eye; that plaintiff was suffering from headache, and he gave him stuff to put on his head and for the headache at the time; that he went to Dr. Lord after the injury and Dr. Lord fixed him up in good shape and sent him home, and told him to come back to him later on; he told him to come back in a couple of days and he would treat his eye; that the eye was so badly swollen and bruised that he could not treat it at that time, so he said to come back. That the testimony of the plaintiff as to the nature of his injuries and his treatment by the physician waives the privilege of the physician, seems to have been held in Rauh v. Deutscher Verein ( 29 App. Div. 483). That case is cited with approval in Capron v. Douglass ( 193 N.Y. 11, 18); also in Fox v. Union Turnpike Co. ( 59 App. Div. 369). The plain import of the plaintiff's testimony is that the physician declined to treat the eye at that time because of its swollen condition, making it impossible for him to give such treatment. It would seem clear that this testimony would authorize the physician to swear that the eye was not swollen at that time; and also to swear what was its actual condition.

  4. Ariz. & N.M. Ry. Co. v. Clark

    235 U.S. 669 (1915)   Cited 19 times

    It was so held under a similar statute in New York. Capron v. Douglass, 193 N.Y. 11. The principle is similar to that which is recognized in the case of attorney and client, where, if the communication is made in the presence of a third person, the privilege is waived.

  5. Dewey v. Cohoes Lansingburgh Bridge Co.

    170 App. Div. 117 (N.Y. App. Div. 1915)   Cited 4 times

    The examination was at the same time the doctor was treating him for the same trouble. It seems unfair that he could call certain of his physicians and refuse to permit others to testify on the ground of professional privilege. We quote from Capron v. Douglass ( 193 N.Y. 11, 17): "To hold that the plaintiff may waive the privilege as to himself and his own physicians and then invoke it as to the defendant and his physicians would have the effect of converting the statute into both a sword and a shield. It would permit him to prosecute with the sword and then shield himself from the defense by the exclusion of the defendant's testimony.

  6. GUNN v. ROBINSON

    103 Misc. 547 (N.Y. Sup. Ct. 1918)   Cited 3 times

    If plaintiff on his direct examination had voluntarily given testimony with reference to his professional relations to Dr. Woodruff, he would have been deemed to have waived the privilege, and to have so far opened the door that the testimony of the physician would have been competent, but when any relations he had with Dr. Wood ruff were forced out of him by the defendant on cross-examination his subsequent explanation of the transaction on re-direct examination should not be deemed a waiver of his privilege, and I am convinced that the exclusion of the testimony of Dr. Woodruff was proper. Code Civ. Pro. §§ 834-836; Butler v. Manhattan Ry. Co., 3 Misc. Rep. 453; Dunkle v. McAllister, 70 A.D. 273; Capron v. Douglas, 193 N.Y. 11; Hennessy v. Kelley, 55 A.D. 449; 40 Cyc. 2387. No other error pointed out seems to be of sufficient importance to require a new trial, and this motion must therefore be denied.

  7. Hethier v. Johns

    198 A.D. 127 (N.Y. App. Div. 1921)   Cited 1 times

    The question again arose in this department in the case of Milligan v. Clayville Knitting Co. ( 137 App. Div. 383), in a personal injury action, and this court reiterated the doctrine which it had laid down in the case of Hennessy v. Kelley (55 id. 449). Meanwhile, an opinion had been written in the Court of Appeals in the case of Capron v. Douglass ( 193 N.Y. 11). That was a malpractice action. The defendant had set the plaintiff's leg.

  8. Fennelly v. Schenectady Railway Co.

    201 App. Div. 211 (N.Y. App. Div. 1922)   Cited 2 times

    at all was highly essential to the defendant as tending to bear out the plaintiff's theory of an assault and rough usage or the defendant's theory that he had not been improperly or roughly ejected. The refusal of the trial court to permit Dr. MacDonald to state to the jury what he found, if anything, in his examination of the plaintiff was reversible error irrespective of the question whether the plaintiff had met the burden which rested upon him to establish that the privileged relationship of physician and patient existed between the plaintiff and such physician ( Griffiths v. Metropolitan Street Railway Co., 171 N.Y. 106) for the reason that the plaintiff had placed his person before the jury as a basis for damages and had his condition described by his own physician, Dr. Bellin. He thereby waived any privilege not only as to the physician called by him, but as to any physician who examined him at about the same time. ( Dewey v. Cohoes Lansingburgh Bridge Co., 170 App. Div. 117; Capron v. Douglass, 193 N.Y. 11.) We need not pass upon the other questions raised upon the appeal since a new trial must be ordered.

  9. Hethier v. Johns

    135 N.E. 603 (N.Y. 1922)   Cited 26 times
    Overruling decision in 198 A.D. 127, 189 N.Y.S. 605

    Where the plaintiff in an action brought to recover damages for personal injuries caused by the negligence of the defendant describes these injuries and their results and it appears that he has consulted or been treated by a physician in regard to them he waives the protection of section 834 of the Code (now section 352, Civil Practice Act). The physician may then be called by the defendant and examined as to any information acquired by him in the course of such consultation or treatment. The rule as it was formerly understood was altered by our decision in Capron v. Douglass ( 193 N.Y. 11). We there took the position that where the patient tenders to the jury the issue as to his physical condition it must in fairness and justice be held that he has himself waived the obligation of secrecy which would otherwise exist.

  10. Golden v. Weinstein

    201 App. Div. 559 (N.Y. App. Div. 1922)

    After the defendant had sworn five witnesses, the court refused to allow him to swear any more witnesses to these facts, on the ground that such evidence was cumulative. That this was error is held in Page v. Krekey ( 137 N.Y. 307); Ward v. Washington Ins. Co. (6 Bosw. 229); Capron v. Douglass ( 193 N.Y. 11); Hauptman v. New York Edison Co. ( 160 App. Div. 917). The determination of the Appellate Term and the judgment of the City Court and the order should be reversed, and a new trial granted, with costs in all courts to appellant to abide the event.