“_Professional Capacity._”—The States in which the statutes limit the privilege to information acquired in a professional capacity have been enumerated.[407] As to what constitutes a professional capacity, the discussion of the facts that establish the relation of physician and patient, and of the information necessary to enable a physician to prescribe or a surgeon to act, makes it unnecessary to discuss at length the meaning of this phrase. The decision in _Lunz v. Massachusetts Mutual Life Insurance Company_[408] would make it appear that in Missouri information apparent on a casual inspection which any one might make is not received in a professional capacity, but this idea is disapproved in the later case of _Kling v. City of Kansas_.[409] Information acquired by the physician by observing the patient on the street anterior to his employment as a physician is not received by him in a professional capacity.[410] In New York, where the physician had not seen the patient before or since his interview for the purpose of treatment, and he was asked what his opinion was, based on a general sight of the man before the examination, it was held that the physician could not properly answer, as all the information upon which the opinion would be based must have been acquired in a professional capacity;[411] but in another case a physician was permitted to express his opinion as to the mental condition of a patient whom he had seen at various times when not in attendance, excluding from his mind any knowledge or information obtained while acting as her medical attendant and confining his answer to such knowledge and information as he had obtained by seeing her when not his patient.[412] It has been said that where information is not such as is obtained on sight by any person, but by removing clothing and by percussion and listening to the action of the lungs, these are professional acts and the information may be considered as obtained professionally.[413] It has been said that information received in a professional capacity involves a decision, though it may be negative; and that signing as witness to a will is not a professional act.[414] _Matter Necessary to Enable a Physician to Prescribe or a Surgeon to Act._—A list of those States whose laws limit the privilege to matter necessary to enable the witness to prescribe or act for the patient is to be found in another place.[415] In Arkansas, where six hours after delivery, the patient stated to her physician who attended at accouchement, that she had never been engaged to marry and never had promised to marry, the statements were held not to be necessary to enable the physician to act.[416]