CONCURRING OPINION. I am of the opinion that there was no error in giving the instruction for the defendant that where an injured party has been attended by a physician, not shown to be adverse to the plaintiff, an inference may be drawn from that fact that such witness, if introduced, will be unfriendly to the plaintiff's contention. Prior to the adoption of the privileged communications statute, as applied to physicians, the testimony of a physician was in all cases competent and available to either party. The *Page 276 privileged communications statute is section 1536, Code 1906, being first enacted by the legislature of 1906. The statute does not, either in terms or by necessary implication, prohibit the drawing of an inference that the witness, if called, would be unfavorable to the party to whom he is available — such witness not being available to the opposite party.
It is expected generally that a party going into court, to use the offices of the court in furtherance of his interests, is willing for the truth to prevail, while circumstances may arise in evidence which overcomes the presumption, in which case it would not be admissible for the court to instruct the jury that the presumption prevails, or for counsel to comment on it. In other words, it is not every case in which failure to call the physician by the party who was his patient will give rise to the inference, yet circumstances might arise from the evidence to show, or rebut, this presumption; and when it does, the presumption disappears.
When the legislature enacts a new statute, such statute takes its place in the body of the general law of the state, and the preexisting law is not displaced by the statute any further than is necessary to give full effect to the statute. In all other respects, the pre-existing law continues in effect.
Where a witness is equally available to each of the parties to the litigation, no presumption arises against either because of failure to call the witness. In such case either party may call the witness, and cannot complain of, or derive any benefit from, the failure of his opponent to call the witness who is equally available to him. But where a statute charges a preexisting law, making a witness available to one party and not to the other, the presumption logically follows that the party to whom he was available would introduce him in case his testimony would be favorable to his contention, and if he were worthy of belief. A party to litigation is not required to call a witness, although available to him *Page 277 alone, where the witness is not worthy of credit; but that fact should appear.
The policy indicated by the statute, making the testimony of a physician incompetent unless consented to by the opposite party, is not one of the fundamental policies coming down to us from the common law, and embraced in the due process of law according to the Constitution. It is generally held that the legislature has power to determine the competency of witnesses, if there is a reasonable relation in the object sought to the welfare of the whole people. At the common law neither husband nor wife was competent as a witness one for the other; and our statute making them competent is an enlargement of the common law, making them competent if husband or wife, parties to the litigation, elects so to do. This statute is materially different from that governing the relation of physician and patient. Society is founded upon the home, under the American legal theory, and to preserve the harmonious relations between husband and wife is one of the great objects of the law pertaining to domestic relations. In other words, the statute making the husband or wife competent removes, to a certain extent, the preexisting restriction, and is not a denial to the party of the right to the testimony of the witness who was competent at the common law. The same is true of the privileged communication rule between attorney and client. Both of these relationships so vitally affect the public peace, order and welfare, that to permit these confidential communications to be disclosed in the trial of a case would equally interfere with the administration of justice.
We have a statute expressly prohibiting comment on the failure of a defendant to take the stand and testify in his own case. It is my understanding that prior to the enactment of this statute it was permissible, and the common practice, where the defendant did not take the stand, for the prosecuting attorney to comment on that fact, and for the jury to draw inferences therefrom hostile to the *Page 278 interests of the defendant. A statute was required to discontinue this practice.
In the communications statute, as applied to physicians, there is no prohibition as to the drawing of adverse inference; and the general rule is that where a witness is only available to one party, and is not called by him, it is the presumption that the failure to do so was due to his not being favorable to such party. This was expressly held in 1901 by this Court in the case of Bunckley v. Jones, 79 Miss. 1, 29 So. 1000, where it is held in the third syllabus that: "Where a complainant's rights are predicated of a deed in respect to which a subscribing witness testified that it was executed, not to complainant, but to his father, who paid the purchase money, and the name of the grantee changed from the father's to the son's after its delivery, and the complainant could easily have called the father as a witness, but failed to do so, it will be presumed that had the father been called his testimony would have been adverse to complainant." This rule seems to be a natural operation of the human mind; and it is a familiar rule of law, analogous to the reasoning here, that where facts are peculiarly within the knowledge of one of the parties, the burden of proof is upon that party to produce the evidence of such facts. The same rule has been applied in the case of Anderson v. Cumberland T. T. Co., 86 Miss. 341, 38 So. 786, decided in July 1905. The presumption is stated in stronger terms in this case, and in the case of Southern Bell T. T. Co. v. Quick, 167 Miss. 438, 149 So. 107.
I think the rule is announced in the case of Buckley v. Jones, supra — that in such case the presumption is that the witness would be hostile, and not that the facts involved in the suit are established or presumed to exist, unless it appears that no one knows the facts except the witness who is not called. The witness, owing to the professional relation to another party, or known hostility, or equivalent reasons, may be hostile to one party and friendly to the other; and if that appears from the *Page 279 evidence, then no inference can be drawn from the failure to call such hostile party. In modern developments, physicians are often employed by business institutions of large operations, such as railroads and other public service corporations, insurance companies, and various other businesses, whose affairs are promoted by the use of regularly employed physicians. In any case of occupational relation between the physician available to the plaintiff, and the defendant, where it would seem probable that the witness was hostile to the plaintiff, although he had attended the plaintiff, or plaintiff's intestate or family, it would be unreasonable to require the party to be called, or for such inference to be indulged as to the reason for his not being called, where such facts sufficiently appear. Care must be exercised in this regard. In the suit at bar, there were instructions for both parties on this subject, and in my opinion we cannot reverse on the facts of this case.