In re Will of Bruendl.

to testify to personal transactions, under sec. 4069. The objection was overruled, which constitutes the second assignment of error. The contestants also assign error for refusing certain instructions and for admitting the will to probate. Edgar L. Wood, for the appellants, to the point that information acquired by physicians in making an examination for the purpose of determining the question of sanity is not privileged, cited Nesbit v. People, 19 Colo. 441; People v. Sliney, 137 N. Y. 570.

H. B. Schwin, for the respondent.

DODGE, J. 1. Sec. 4075, R. S. 1878, is for the benefit and protection of the patient, and its prohibitions can be waived in her lifetime only by the patient, and not by the physician. Boyle v. N. W. Mut. R. Asso. 95 Wis. 312. The purpose of the statute, as pointed out by Mr. Justice PINNEY in that case, is to facilitate and make safe full and confidential disclosure by patient to physician of all facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. The legislature has decided wisely that public policy requires such measure of restriction upon the freedom of the physician to testify or of others to demand testimony. But as it rested with the legislature to discover the necessity for, and to effectively impose, such restrictions, which are in derogation of the common law, it is for the courts only to enforce such as have been imposed and not others which the legislature has omitted. The seal placed on the lips of the physician only relates to "information necessary to enable him to prescribe for such patient as a physician." The tendency of all courts has been and should be toward liberal construction of these words to effectuate the purpose of the statute. Thus, it has been held that the word "necessary should not be so restricted as to permit testimony of state

In re Will of Bruendl.

ments or information in good faith asked for or given to enable intelligent treatment, although it may appear that the physician might have diagnosed the disease and prescribed for it without certain of the information, so that it was not strictly necessary. Sloan v. N. Y. C. R. Co. 45 N. Y. 125; Grattan v. Metropolitan L. Ins. Co. 80 N. Y. 281; Renihan v. Dennin, 103 N. Y. 573. So, also, the word "prescribe" is not to be used in its most limited sense of writing an order upon an apothecary for specific drugs, but should be given as liberal and enlarged an effect as the word itself will bear in the connection found.

Applying such rule, it is nevertheless apparent that the word "prescribe," when used as applicable to physicians, embodies the purpose of cure, remedy, or alleviation. The word means "to advise, appoint, or designate as a remedy for disease." Cent. Dict. Indeed, the counsel for proponents has the same understanding. He says in his brief: "The word 'prescribing,' used in the statute, does not only apply to prescribing medicines. It has a broader sense. After a physician has professionally examined a patient, he may find that the patient does not need any medicine, but that he needs different air, different food, different employment, must keep away from bad company, etc., and advises him what to do so as to regain his health." We think, therefore, that the purpose to cure or alleviate is an essential element in the meaning of the words "to prescribe as a physician," as used in this statute, and that the prohibition against disclosing information only applies when such purpose is present. It may be contended, not without force, that there is the same reason for confidence when the examination is only to ascertain whether a certain disease exists, without any purpose that the physician shall attempt any prescription or advice for cure, but the legislature has not seen fit to so declare, and such a case is as it was before the statute.

In the present case, the purpose of attempting anything

In re Will of Bruendl.

remedial was wholly wanting in the interview between the medical witnesses and the deceased. The question was not whether resumption of control over her property would or would not be beneficial to her physically or mentally, but whether her mental condition was such that the county court would be likely to restore such control to her. Advice, if any, was sought, not with reference to treatment of any disease, but as to whether to make an application to the court. We hold, therefore, that the information obtained by the physicians at the interview of September 18, 1896, was not necessary, and was not obtained, for the purpose of enabling them to prescribe for the testatrix as physicians, and therefore they were not incompetent to give testimony thereof.

2. No error was committed in admitting the testimony of the pastor, vice-president of the church which was a legatee. Here, as in the above discussed assignment of error, the statute must control. Sec. 4069 only excludes "parties,” and does not, as do the statutes of many states, exclude all those interested in the result. The church corporation was the party, and, although the officers and members of a corporation may be more or less directly interested in the result, the legislature has not seen fit to exclude them as witnesses in an action between the corporation and representatives of decedents or insane. An attempt was made in Hanf v. N. W. M. A. Asso. 76 Wis. 450, to extend this statute to agents of the corporation litigant, on the contention that, since a corporation could testify only by its agents, the purpose of the statute extended to such testimony, but the contention was overruled. An officer differs not at all from an agent, except that he usually has a pecuniary interest. That, however, does not bring him within the terms of the legis lation. New Jersey T. & S. D. Co. v. Camden S. D. & T. Co. 58 N. J. Law, 196; Ullman v. Brunswick T., G. & L. Co. 96 Ga. 625; Bopple v. Supreme Tent, 18 App. Div. (N. Y.), 488.

VOL 102-4

Winkelmann vs. Brickert and another.

As the conclusion reached upon the first assignment of error will necessitate reversal, we need make no comment on the remaining errors assigned, nor upon the sufficiency of the evidence to support the finding of the circuit court. By the Court.-Judgment reversed, and cause remanded for a new trial.

BARDEEN, J., took no part.

WINKELMANN, Guardian, Respondent, vs. BRICKERT and another, Appellants.

January 13-January 31, 1899.

Bills and notes: Payments to supposed agent.

The purchaser of a negotiable note and the mortgage securing it is not chargeable with payments thereafter made by the mortgagor to a third person who did not have possession of the papers and was not the agent of the purchaser, where the latter did no act authorizing a belief that an agency existed.

APPEAL from a judgment of the circuit court for Dodge County: JAMES J. DICK, Circuit Judge. Affirmed.

For the appellants there was a brief by Malone & Bachhuber, and oral argument by J. E. Malone.

Harlow Pease, for the respondent.

WINSLOW, J. This is an action for the foreclosure of a mortgage upon real estate executed January 29, 1883, and owned by the plaintiff. The sole question in issue between the parties was whether W. T. Rambusch was the agent of the plaintiff during the years 1892 to 1896, inclusive, so that certain payments made during those years by the defendant mortgagors to Rambusch should be credited upon the mort

Crawford vs. Christian and wife.

gage. The plaintiff bought the note and mortgage July 2, 1892; the note was negotiable, and was not then due. The purchase was made of the Citizens' Bank of Juneau, through Mr. Hemmy, the cashier, and the plaintiff has had possession of the same ever since. The defendants thereafter made several payments of interest and instalments of principal to Rambusch, believing him to be the agent of the owner of the mortgage. He was not such agent, and he converted the moneys to his own use. The testimony not only shows that Rambusch was not the agent of the plaintiff, but that the plaintiff had never done any act which would authorize any one to think so. The defendants were grossly negligent in making payments to Mr. Rambusch without production of the note or any proof that he was authorized to receive such payments. The court held that the agency was not proven, and hence that the payments could not be credited, and the finding is the only one that the evidence would justify. A more detailed statement of the evidence would not be useful. By the Court.- Judgment affirmed.

BARDEEN, J., took no part.

CRAWFORD, Appellant, vs. CHRISTIAN and wife, Respondents. January 13-January 31, 1899.

Evidence: Mental capacity: Opinion of nonexpert: Cross-examination: Appeal.

1. The opinion of a nonexpert witness as to the mental condition of a person cannot properly be received in evidence until such witness has first qualified himself by stating facts within his personal knowledge and means of personal observation, such as to satisfy the court of his ability to give an intelligent opinion liable to be of some assistance to the jury in coming to a correct conclusion.