Appellant, Frank Davenport, was tried in the court below on an indictment for murder and convicted of manslaughter by the jury, sentenced by the court to serve two years in the state penitentiary, and in order for this dissent to be clearly understood, it is necessary to state that the physicians who attended the deceased, Artie Smith, while in the hospital, were permitted to testify as to all communications between the physicians and the decedent over the objection of the defendant.
The defendant objected to the testimony on the ground that the communications were privileged under section 6380, Hemingway's Code (section 3695, Code of 1906), which is as follows:
"All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient."
The wound was inflicted with an ordinary pocket knife and the defendant claimed that the cutting was accidental, *Page 130 occurring in a tussle over a bottle of alcoholic rub. This testimony showed all the details of two major operations, one abdominal, and the other the amputation of his left leg just below the hip joint. In addition, there were four blood transfusions, and the testimony was to the effect that this wound was the proximate cause of his death.
In view of the harrowing details of the operations and blood transfusions as related by the physicians, there can be no doubt but that, under the facts in this case, this testimony actually was prejudicial to the interest of the defendant.
In this case we have an anomalous situation. Two of the judges of this court are of the opinion that this section does not render communications between a patient and his physician offered in criminal cases privileged. The writer of the main opinion does not, as we understand that opinion, entertain that view, but is of the opinion that no harm in a legal sense was done the defendant, and that he cannot object to the communications between his victim, the patient, and the physicians attending him, while three of the judges of this court concur in the belief that this statute is so plain, so unambiguous, and so clear as to its meaning and purpose as not to demand judicial construction, and that this court has already so decided that all communications between the patient and the physician are privileged in any legal proceeding unless waived by the patient.
In this situation the case is affirmed by a divided court, and the judgment of the lower court stands.
I do not think that the main opinion is in accord with the meaning, purpose, and intent of the statute. Nor is it in accord with the previous decisions of this court. Nor to my mind does it appear to be logical to thus put this statute "in the air" by judicial construction.
As we understand the main opinion, the effect of the holding illustrated would be this: If Davenport's brother had been a party to the crime here charged, and if a *Page 131 severance had been granted, then, if the same physicians in the trial of this brother had claimed the privilege which it was their duty to claim under this statute, and the court had not permitted them to testify, and necessarily, on account of the failure to have the physician's testimony, this brother would have been acquitted. With the opposite ruling of the court on this question, the defendant here, with the testimony in, would be convicted. In other words, to put it plain, the main opinion holds that, if the physician claims the privilege, and the court sustains it, that action is not considered error by this court.
I do not think it safe to put the operation of the statute at the will and subject to the bent of mind of the physicians of this state, nor of the several circuit judges engaged in the trial of criminal cases, dependent upon the variant views and leanings of these judges. In the case of Hamner v. LumberCo., 100 Miss. 349, 56 So. 466, this language is used:
"A statute which is plain and unambiguous, clear and free from doubt, is its own interpreter, and in such cases it is not necessary to resort to any rule of construction in order to ascertain its meaning. It is not for the judiciary to determine the wisdom, but simply to enforce the statute as it is written, and leave the responsibility where it justly belongs — upon its creator, the legislature. All of these principles are but hornbook law, known and familiar to all who are mere infants in the school of law and in its primary and academic departments. When there is doubt or obscurity in a statute, one of the cardinal rules of construction is to ascertain the conditions of affairs at the time of its enactment, the evil to be avoided, and the necessary effect produced by the statute."
In the case of State v. Traylor, 100 Miss. 544, at page 558, 56 So. 521, 522, this court uses this language: "The court cannot create a law. Its sole power is to enforce the statute as written by the legislature. The court has no right to add anything to or take anything from a statute, *Page 132 where the meaning of the statute is clear. It is only in causes where the statute is ambiguous that any rule for the determination or construction of statutes can be resorted to."
There is nothing ambiguous or open to construction in the words "all communications," and "patient and physician" are definitely described. The power to waive this privilege is limited to and vested in the patient, and, when the patient dies, the lips of the physician are sealed. Whether we say that such testimony is incompetent, or that the witness is incompetent to testify, the testimony delivered by the physician, not at the instance of the patient, is in violation of the plain, unmistakable language and meaning of this statute. I do not think it will do to say that, when the court and the physician violate the plain provision of the statute in this manner, and thereby testimony prejudicial to the rights of the defendant is heard by the jury, no harm is done him, or that the statute is not in his favor. I venture the statement that this statute can only logically be construed in the light of our former decisions as being in favor of one person, and that person is the patient whose communications with his physician are involved.
If the legislature had intended to limit or modify the character of legal proceeding as civil or criminal, it certainly would not have used the words "any legal proceeding," as no broader language could have been selected, I dare say. So that the failure to insert the word "civil" after the word "any" disposes of the idea that this statute applies to criminal cases.
In 40 Cyc., p. 2389, we find this rule: "The rule of privilege applies, although the patient is not a party to the action in which a disclosure is sought, and is not confined to civil cases, but applies also in criminal cases, except where the prosecution is for causing the death of the patient."
Also see People v. Murphy, 101 N.Y. 126, 4 N.E. 326, 54 Am. Rep. 661. *Page 133
Bear in mind that the defendant in this case is not a physician being tried for causing the death of his patient, in which case of course the privilege could not be invoked.
In Thompson v. Ish (99 Mo. 160, 12 S.W. 510), 17 Am. St. Rep. 552 at page 570, in a footnote, it is held that the statute is applicable in criminal cases, as well as civil cases. We quote as follows:
"It is settled by the recent New York decisions that, under the statutes of the state, the only person who can waive the prohibition is the patient himself, from whom the physician acquired the information, and that after his death the prohibition cannot be waived by any one. Westover v. Aetna L.Ins. Co., 99 N.Y. 56 (1 N.E. 104), 52 Am. Rep. 1; Renihan v.Dennin, 103 N.Y. 573 (9 N.E. 320), 57 Am. Rep. 770; Loder v.Whelpley, 111 N.Y. 239 (18 N.E. 874). In the case of Renihan v. Dennin, 103 N.Y. 573 (9 N.E. 320), 57 Am. Rep. 770, EARL, J., who delivered the opinion of the court, said: `It is probably true that the statute, as we feel obliged to construe it, will work considerable mischief. In testamentary cases, where the contest relates to the competency of the testator, it will exclude evidence of physicians, which is generally the most important and decisive. In actions upon policies of life insurance, where the inquiry relates to the health and physical condition of the insured, it will exclude the most reliable and vital evidence which is absolutely needed for the ends of justice. But the remedy is with the legislature, and not with the courts."
In 4 Wigmore on Evidence, p. 3356, we find the following:
"The privilege, in general, applies as well in criminal as in civil cases; unless the statute expressly limits it to the latter. But in two classes of instances the privilege, though apparently applicable, exhibits its inherent impropriety so plainly that courts have sometimes sought by main force, to set limits and prevent its evil effects, *Page 134 namely, in cases where the physician is himself a partaker inthe criminal transaction, and in the cases where the physician has acted on behalf of the victim of a crime. Courts have chosen various methods, more or less reasonable, of escaping from the dilemma. All that can be said is that an ill-advised initial principle is sure to tempt judges, sooner or later, to do violence to it."
Clearly Mr. Wigmore states the case when he says that courts sometimes have sought by main force to prevent its evil effects, and describes the situation in this case, although I am not at all criticizing the statute here under review. That is not my province as a judge. Whether a statute is ill-advised or wise is for the legislature to determine, and in my opinion the matters set forth in the main opinion might well have been considered by the legislature by inserting proper limitations, rather than have the courts tempted by judicial construction to insert into the statute extraneous views of what the statute should contain.
The statutes on this subject which I have examined do not contain the plain and unambiguous language employed by our legislature in this statute. After the New York court had held that a statute similar to ours applied to criminal as well as to civil cases, and that the right to waive existed only in the patient, the New York legislature in 1909 changed the law. The Missouri law contains no limitation as to the power to waive such as is in our statute. The Colorado statute (C.L., section 6563) is in these words:
"A physician or surgeon duly authorized to practice his profession under the laws of this state, . . . shall not, without the consent of his patient, be examined as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient."
The Michigan statute (Comp. Laws, section 12550, subd. 62) is in this language: "No person duly authorized to practice medicine or surgery shall be allowed to *Page 135 disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon."
This general observation applies to all these statutes mentioned, and that is, there is probably no clear limitation undertaken in the statute, and the statutes were passed in the light of decisions of other states holding that the privilege might be waived. In other words, by construction, the statutes could be held to contain an implied right in another to waive for the patient because passed in the light of the law as announced in other jurisdictions.
This court, construing this statute, in Hamel v. SouthernRailroad Co., 113 Miss. 344, 74 So. 276, said:
"In view of the plain meaning and purpose of the above statute, it was palpable error to permit this doctor to testify to these matters which are privileged communications, a disclosure of which cannot be required in any legal proceeding except at theinstance of the patient."
In U.S. Fidelity Guaranty Co. v. Hood, 124 Miss. 548, 87 So. 115, 15 A.L.R. 605, the court cited the case of Railroad v.Messina, 109 Miss. 143, 67 So. 963, saying:
"The evidence of a physician as to knowledge gained by reason of his employment as such could not be disclosed without the consent of the patient; that the privilege was for the benefitof the patient, and not of the physician."
In the Hood case, 124 Miss. at page 571, 87 So. at page 119, this court also said:
"But, whatever may have been the reason for the enactment of the statute, the statute expressly prohibits a physician from testifying without the consent of the patient. The evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judge and the public *Page 136 may hear the statement of the physician in such case, though it be excluded from the jury. In such case the question ought to be directed to ascertaining whether the physician has knowledge by reason of the relation of physician and patient, and, if it wasso acquired, it ought to be excluded."
In Sovereign Camp, W.O.W. v. Farmer, 116 Miss. 626, 77 So. 655, this court said:
"The privilege created by section 3695, Code of 1906 (Hemingway's Code, section 6380), is personal to the physician'spatient, and may be waived by him either before or at the trial," etc.
I can but emphasize this statement of the court that this privilege is personal to the patient and favors no other litigant. It has no regard for the parties litigant. It seeks to confer no benefits, nor to deprive any right to any litigant in the world save the patient. Its sole purpose is to preserve inviolate the most confidential relation of physician and patient. Even if we say that there is a casus omissus on the part of the legislature, and even if we say that the statute is unwise, which I do not say, it is not for the courts to supply this defect, if such there be.
This statute and other such statutes are supposed to be enacted out of motives and for purposes which flow from grounds of public policy. Crisler v. Garland, 11 Smedes M. 136, 49 Am. Dec. 49; Perkins v. Guy, 55 Miss. 153, 30 Am. Rep. 510.
In my opinion, the rule sought to be announced in the main opinion springs from and arises out of other privileged communications arising under the common law, and not arising from a construction of a clear and unambiguous statute such as this.
In McCaw v. Turner, 126 Miss. 260, 88 So. 705, after reviewing the authorities with reference to this statute, Chief Justice SMITH for the court said:
"The statute in plain and unambiguous language limits the right to waive the privilege to the physician's patient, *Page 137 and the right must be so limited by the courts, unless the manifest reason and obvious purpose of the statute would be sacrificed by adhering to a literal interpretation of its language."
I cannot say that the manifest reason and obvious purpose of the statute would be sacrificed in the instant case, because the briefs of counsel upon this question show the same attack made upon the enforcement of this statute as seems now to be adopted in the main opinion of this case. I think the law is plain, and does not call for further interpretation. As to whether or not harmful results will flow from an enforcement of the statute as written is a matter of the individual opinion of the judge, and most of that argument addresses itself to the legislative branch of the government rather than to the judicial department. I think the testimony in this case was most harmful to this defendant; that it most probably aided the state materially in securing a verdict at the hands of the jury. I think that the law should be settled by the courts of the land, and not be left to the caprice of the physician, or to the variant opinions of the several trial judges as to the construction of this statute.
If it is reversible error in one case to admit this testimony, then in all cases of the same character, it should likewise be reversible error.
I think the defendant is entitled to a reversal of his case and to a new trial, and whatever may be the matter with this statute, if anything, should be relegated to the proper governmental branch for its cure.
SMITH, C.J., and COOK, J., concur.