That the waiver must be in express language is not necessary, upon any principle. But this is sometimes by statute required. Distinguished, how

ever, this statutory waiver, which is valid only within certain limits, and the ordinary principle that a rule of evidence will not be enforced if the opposing counsel fails to make objection when the witness is examined (ante, § 18); thus, whether or not the statutory waiver was permitted to be made by the attorney for the witness or party before or during trial, still the counsel's failure to object to the compulsion of the witness' answer would render futile any exception to the answer.5

That a waiver may be irrevocably made by contract before litigation begun has generally been conceded by the Courts. It should certainly be sanctioned, unless made under conditions of duress or fraud which would have rendered the contract in other respects voidable.

Coming now to waivers implied from conduct, it is to be noticed that these depend, as already observed for other privileges (ante, §§ 2327, 2340), on two considerations - the interpretation of the actual conduct, and the fairness of the situation created by that conduct. A waiver is to be predicated, not only when the conduct indicates a plain intention to abandon the privilege, but also when the conduct (though not evincing that intention) places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege. It is not to be both a sword and a shield (in Lord Mansfield's phrase concerning an infant's exemption from liability). The question then arises, What sorts of conduct, by inference or by fairness, should be treated as a waiver of the privilege to keep secret the communications to a physician?

§ 2389. Same: Waiver by Bringing Suit; by Testifying; by Former Waiver. (1) In the first place, the bringing of an action in which an essential part of the issue is the existence of physical ailment should be a waiver of the privilege for all communications concerning that ailment. The whole reason for the privilege is the patient's supposed unwillingness that the ailment should be disclosed to the world at large; hence the bringing of a suit in which the very declaration, and much more the proof, discloses the ailment to the world at large, is of itself an indication that the supposed repugnancy to disclosure does not exist. If the privilege means anything at all in its

3 E. g., in New York, by the amendment of

1891.

E. g. 1889, Alberti v. R. Co., 118 N. Y. 77, 23 N. E. 35.

This distinction was ignored in the following case 1889, Hoyt v. Hoyt, 112 N. Y. 493, 515, 20 N. E. 402.

61902, Keller v. Ins. Co., 95 Mo. App. 627, 69 S. W. 612 (waiver in a policy held valid, and effective also against "all who come within its termis," here, a beneficiary); 1876, Edington v. Mutual Life Ins. Co., 67 N. Y. 185, 194 (undecided); 1896, Foley v. Royal Arcanum, 151 id. 196, 45 N. E. 456 (an express waiver, in an insurance-application, as to the testimony of any

attending physician, sanctioned, on the theory that a waiver of the statutory right is not against public policy); 1900, Holden v. Ins. Co., 165 id. 13, 58 N. E. 771 (stipulation of waiver by the insured in his application, held not sufficient under the statutory amendment of 1891); 1901, Fuller v. Knights of Pythias, 129 N. C. 318, 40 S. E. 65 (waiver in an insurance application, held binding on the beneficiary); 1888, Adreveno v. Mutual R. F. L. Ass'n, 34 Fed. 870, Thayer, J. (waiver of the privilege by the insured in a policy is valid, and binds also one claiming under him after death). Compare such a waiver for another privilege (ante, § 2275).

origin, it means this as a sequel. By any other conclusion the law practically permits the plaintiff to make a claim somewhat as follows: "One month ago I was by the defendant's negligence severely injured in the spine and am consequently unable to walk; I tender witnesses A, B, and C, who will openly prove the severe nature of my injury. But, stay! Witness D, a physician, is now, I perceive, called by the opponent to prove that my injury is not so severe as I claim; I object to his testimony because it is extremely repugnant to me that my neighbors should learn of my injury, and I can keep it forever secret if the Court will forbid his testimony." If the utter absurdity of this statement (which is virtually that of every such claimant) could be heightened by anything, it would be by the circumstance (frequently observable) that the dreaded disclosure, which the privilege prevents, is the fact that the plaintiff has suffered no injury at all. In actions for personal injury, the permission to claim the privilege is a burlesque upon logic and justice. In actions upon insurance policies, where fraudulent misrepresentations as to health are in issue, the insured's initial conduct in volunteering a supposedly full avowal of his state of health has put him in the position of abandoning any desire to be secretive towards the insurer on that subject, and of giving the insurer in fairness the right to ascertain the truth; and a waiver should be predicated by the nature of the action. Yet here the injury to justice by denying a waiver is not so considerable; for in fairness (that is, to honest applicants, who have nothing to fear) the insurer ought immediately to make his extrinsic investigations among prior attendant physicians (which commonly he does not do), instead of waiting till more premiums have been paid and the insured has left the world; so that here the moral inequities are more nearly balanced, and no particular harm is done by the privilege-except to the logic of the law. In testamentary causes, there is ordinarily no conduct amounting to waiver, although it is otherwise unsound (ante, §§ 2381, 2384) to treat the data of sanity and insanity as having been consciously confided, in any sense of the word, to the physician. So far as judicial rulings go, only actions against a physician for malpractice have been deemed to involve a waiver.2

(2) The party's own voluntary testimony, on trial, to his physical condition in issue, should be a waiver of the privilege for the testimony of a physician who has been consulted about the same physical condition in issue; the reasons here being merely somewhat stronger than those above noted. Courts have rarely conceded this; though statutes have often eni This is recognized by the insurers in the jury by malpractice by a physician is a waiver of now frequent issuance of policies which are made privilege as to professional confidence; but not incontestable after a short period; i. e. the in- an action by a husband for loss of services of the surer virtually has to make his inquiries within injured wife). Compare the cases cited ante, that period or not at all. But so far as these poli- § 2385. cies are contestable (e. g. for "wilful misrepresentations"), the statement still applies.

2 1894, Beckwell v. Hosier, 10 Ind. App. 5, 37 N. E. 580 (patient's action for malpractice, held a waiver, permitting the defendant to testify); 1900, Cramer v. Hurt, 154 Mo. 112, 55 8. W. 258 (an action by a wife for personal in

3 1891, Lane v. Boicourt, 128 Ind. 420, 27 N. E. 1111 (malpractice on the plaintiff's wife; the plaintiff's use of the testimony of himself, his wife, and her mother, held a waiver).

4 Contra: 1887, Williams v. Johnson, 112 Ind. 273, 13 N. E. 872 (the plaintiff's testimony that she had called Dr. H. and he had "pre

acted it. Certainly it is a spectacle fit to increase the layman's traditional contempt for the chicanery of the law, when a plaintiff describes at length to the jury and a crowded court-room the details of his supposed ailment and then neatly suppresses the available proof of his falsities by wielding a weapon nominally termed a privilege.

(3) A waiver at a former trial has been held not to affect the privilege at a later trial. This is clearly unsound; for the original disclosure takes away once for all the benefit aimed at by privilege; to enforce it thereafter is to seek to preserve a privacy which exists in legal fiction only."

§ 2390. Same: Waiver by Calling the Physician. (1) To request a physician to attest one's will is by implication to request him to bear testimony, if called on, to all facts affecting the validity of the will, and is therefore a waiver.1 (2) To call a physician to the stand, and examine him as a witness to one's physical condition as formerly communicated to him, is a waiver of the privilege in regard to his knowledge of the physical condition asked about; 2 no reasoning could pretend to maintain the contrary. (3) To call a physician as a witness to one's physical condition is a waiver of the privilege as to the knowledge acquired by other physicians of the same condition. This is generally not conceded in the judicial rulings; but it cannot be escaped, if regard is had to the foundation of the privilege. What further

scribed for her back and side," held not to permit the opponent to call Dr. H. to testify that he had found no injury; this was a gross error; it practically permitted the plaintiff to invoke the physician's credit falsely, with a guarantee against the exposure of her lie); 1890, McConnell v. Osage, 80 Ia. 293, 45 N. W. 550 (plaintiff's direct testimony to her previous condition of health and sickness, naming her physician, held not a waiver permitting the calling of the physician to contradict her); 1901, Burgess v. Sims Drug Co., 114 id. 275, 86 N. W. 307 (testifying on cross-examination to the subject of the desired testimony of the physician is not a waiver, because not voluntary); 1902, Green v. Nebagamain, 113 Wis. 508, 89 N. W. 520 (a party's own testimony to the same injury, held not a waiver).

Ante, § 2380.

6 1901, Burgess v. Sims Drug Co., 114 Ia. 275, 86 N. W. 307 (testifying to the same subject, or calling the same physician, at a former trial, held not a waiver); 1883, Grattan v. Ins. Co., 92 N. Y. 274, 288 (questioning the physician on a former trial, held not a waiver).

71887, McKinney v. R. Co., 104 N. Y. 352, 355, 10 N. E. 544 (contro to the preceding ruling; "after its publication no further injury can be inflicted upon the rights and interests which the statute was intended to protect; the consent, having been once given and acted upon, cannot be recalled ").

1 1895, Mullin's Estate, 110 Cal. 252, 42 Pac. 646.

2 1893, Wheelock v. Godfrey, 100 Cal. 587, 35 Pac. 317 (calling the physician, held on the facts a waiver); 1897, Lissak v. Crocker Est.

Co., 119 id. 442, 51 Pac. 688 (calling the physician to testify to an examination, held a waiver); 1902, Sovereign Camp v. Grandon, 64 Nebr. 39, 89 N. W. 448 (cross-examination of the physician to the injury; held a waiver). Statutes (ante, § 2380) often declare this in terms.

3 1884, Penn. Mutual L. Ins. Co. v. Wiler, 100 Ind. 92, 102 (calling physician A is not a waiver of the privilege as to the same subject for physicians B and C); 1897, Baxter v. Cedar Rapids, 103 Ia. 599, 72 N. W. 790 (several physicians having examined the plaintiff, the calling of one does not waive the privilege as to the others); 1885, Dotton v. Albion, 57 Mich. 575, 577, 24 N. W. 786 (the calling of one physician to prove the plaintiff's good health before the injury, held not to permit the calling of other physicians to negative her good health before the injury); 1891, Mellor v. R. Co., 105 Mo. 455, 16 S. W. 849 (plaintiff's calling of C, who attended him for the injury, held not to permit the calling of S., who had preceded C. in attending for the same injury); 1888, Hope v. R. Co., 110 N. Y. 643, 17 N. E. 873, 40 Hun 438 (calling one of three physicians who had visited the plaintiff at separate times for the same injury; held not a waiver as to the other two; Earl and Finch, JJ., diss.); 1895, Morris v. R. Co., 148 id. 88, 42 N. E. 410 (where two physicians were called in attendance for a joint examination, the plaintiff, by putting one on the stand, also waived the privilege as to the other; in effect overruling Record v. Saratoga Springs, 120 id. 646, 24 N. E. 1102); 1902, Metropolitan St. R. Co. v. Jacobi, 50 C. C. A. 619, 112 Fed. 924 (following Hope v. R. Co.).

reason is there for secrecy, if the patient has thrown it aside by permitting one physician to testify? The unfairness of allowing a party to play fast and loose with medical testimony in this shifty manner is obvious to the untechnical intelligence. (4) The sending of a physician's certificate, as part

of the "proofs of death," by the beneficiary of a contract of life insurance or the representative of the insured, is a voluntary disclosure of the physician's knowledge though made in pursuance of contract, and is therefore a waiver.4

The

§ 2391. Same: Waiver by Deceased Patient's Representative. personal representative of the deceased may waive the privilege. One who is entrusted with the management of the deceased's property may surely be trusted to protect the memory and reputation of the deceased, in so far as it is liable to injury by the disclosure of his physical condition when alive. It is incongruous to hold that the person who manages the litigation of the deceased's property-interests has no power to waive rules of evidence for the purpose of advancing those interests. The power of an heir may also be conceded, if we remember that the heir, first, is at least equally interested in preserving the ancestor's reputation, and, secondly, has an equal moral claim to protect the deceased's property-rights from unwarranted diminution. The futility, under the circumstances, of predicating any privilege is the more apparent when (as in the usual case) the issue turns upon the fact of insanity, which is so bruited publicly in the litigation that the pretence of preserving secrecy is a vain one. Except in two or three jurisdictions,1 it is usually agreed that the deceased's representative (and probably also the heir) may waive the privilege.2

4 1900, Nelson v. Ins. Co., 110 Ia. 600, 81 N. W. 807 (physician's affidavit, sent with proofs of death, received as an admission of the beneficiary); 1891, Buffalo L. T. & S. D. Co. v. Knights T. & M. M. A. Ass'n, 126 N. Y. 450, 454, 27 N. E. 942 (physician's certificate of cause of death, sent with proofs of death, receivable as the party's admission).

Distinguish the following ruling: 1900, Davis v. Supreme Lodge, 165 N. Y. 159, 58 N. E. 891 (physician's certificate of death, required by law, excluded; N. Y. City Charter, Laws 1897, c. 378, § 1172, making admissible the records of the board of health, does not repeal the Code section; Gray and Landon, JJ., diss.); 1903, Beglin v. Ins. Co., 173 id. 374, 66 N. E. 102 (preceding case followed).

For the question how far these "proofs " may be used as admissions or otherwise, see ante, § 1073.

1 Cal. 1893, Flint's Estate, 100 Cal. 391, 395, 34 Pac. 863 (no waiver, following the N. Y. construction; here, not for an heir as against a devisee); 1897, Harrison v. R. Co., 116 id. 156, 47 Pac. 1019 (following the New York rulings); Ia.: 1900, Shuman v. Supreme Lodge, 110 Ia. 480, 81 N. W. 717 (contest between beneficiaries of insurance; the privilege held to apply; compare the Iowa cases infra); N. Y.: 1885, Westover v. Ins. Co., 99 N. Y. 56, 1 N. E. 104;

1888, Loder v. Whelpley, 111 id. 239, 246, 18 N. E. 874.

2 Ind. 1881, Masonic M. B. Ass'n v. Beck, 77 Ind. 203, 210 (said obiter; waiver by deceased's representative, allowable); 1884, Penn. M. L. Ins. Co. v. Wiler, 100 id. 92, 101 (same; beneficiary of an insurance policy, held to have the right of waiver); 1889, Morris v. Morris, 119 id. 343, 21 N. E. 918 (administrator allowed to waive); Ia.: 1894, Denning v. Butcher, 91 Ia. 425, 436, 59 N. W. 69 (waiver by an executor allowable; here, by calling as a witness); 1897, Winters v. Winters, 102 id. 53, 71 N. W. 184 (a physician may testify to the deceased's mental condition; whether on the ground that either heir or alleged devisee has the right to waive the privilege as representative, or that the statute does not apply where the proceedings are not adverse to the estate, as in a will contest, is expressly not decided, both grounds being approved); Mich. : 1879, Fraser v. Jennison, 42 Mich. 206, 225, 3 N. W. 882 (testamentary contest; waiver by an executor allowed); Mo.: 1884, Groll v. Tower, 85 Mo. 249, 255 (personal injury; waiver by a representative, allowed); 1889, Thompson v. Ish, 99 id. 160, 12 S. W. 510 (testamentary contest; a residuary legatee allowed to waive; "all claiming under the de ceased" may waive).

Sub-topic VII: COMMUNICATIONS BETWEEN PRIEST AND PENITENT.

§ 2394. History; No Privilege at Common Law. It is perhaps open to argument whether a privilege for confessions to priests was recognized in common-law courts during the period before the Restoration. The only available data appear to be an indecisive incident in the Jesuit trials under James I, and a statute of much earlier date and of ambiguous purport,2 together with the general probabilities to be drawn from the recognition of Roman ecclesiastical practices prior to Henry VIII.3 But since the Restoration, and for more than two centuries of English practice, the almost unanimous expression of judicial opinion (including at least two decisive rulings) has denied the existence of a privilege. A single judge, to be sure, distinctly declared for the privilege; 5 and several took occasion to avow that in their