Kendall v. Grey

2 Hilt. 300

• Court: New York Court of Common Pleas
• Decided: April 15, 1859
• Status: Published

Opinion

By the Court, Daly, First Judge.

This judgment must be reversed. The. bill rendered to the defendant, by the plaintiff, was given in evidence, and the plaintiff admitted that it was the onty bill he had rendered. This bill showed that the amount of the plaintiff’s claim, as fixed by himself, was but $26.75, though he claimed, by his bill of particulars, for the same items, $98.75. By the ruling of the justice, which was altogether erroneous, the defendant was cut off from showing the nature of the disease for which he had treated the plaintiff, a knowledge of which was essential to estimate properly the full value of the service which the defendant had rendered. Communications made to a physician while attending in a professional capacity, do not, by the general rules of evidence, come within the class of privileged communications, (Dutchess of Kingston's case, 11 Har. 243; 1 Greenl. § 248); and our statute, (2 R. S. 406, § 73), being in derogation of the general rule of law, cannot be extended beyond its express term. It applies only to cases of communications and information, acquired by a person duly authorized to practice physic, while attending a patient in his professional capacity, and which communications or information were necessary to enable him to prescribe for the patient. The witness Page stood in no. such relation to the plaintiff, nor was it shown or offered to be shown that the statement made by the plaintiff to Page was for the purpose of enabling Page to prescribe for him, or was stated to Page to enable Grey to prescribe for him. Even the plaintiff, who having offered himself as a witness, and who could claim no such exemption, as the inquiry related directly to the matter in issue, was exempted by the ruling of the court from stating anything respecting the nature of the disease, while he testified that he had paid Dr. Grey $4, and supposed that that was all that he charged. Without inquiring as to the nature of the proof of the value of the picture, or whether there was any evidence of its delivery to the defendant, after it was repaired, as it was of little or no value before, it is sufficient for the reversal of the judgment that the defendant was precluded from showing the nature of the disease for which he had treated the plaintiff, and had performed an operation upon him, and which may have been very material to enable the defendant to show the true value of his services. The defendant’s bill was $58.50, and, allowing the defendant $50 for the picture, which is all he claimed in his bill of particulars, and taking the other items at the amount fixed by himself in the bill he rendered to the defendant, his claim would amount to $76.75 at its utmost limit, from which is to be deducted $6.50, paid by Grey, reducing it to $70.25. Mow, Grey’s bill, $58.50, deducted from this, would leave the balance in favor of the plaintiff $11.75, and he had judgment for $20.25. It is . plain, therefore, that the justice did not allow Grey the full amount of his claim, and as he would not allow him to give evidence which, upon the mere inspection of Grey’s bill, it is evident was essential to prove the nature of the service he rensdered and the value of it, the judgment cannot be sustained.

Judgment reversed.