(dissenting). The majority opinion, roughly interpreted, holds that there must be a new trial for four reasons:
First, because, while arguing with counsel, the trial court asked whether the doctor could act hoth as a physician and a detective.
Second, because said doctor was not allowed to testify to that part of the conversation had with plaintiff, which the court says was not necessary for her treatment.
Third, for rulings in the exclusion of testimony, for instance, that the defendant had received other men as company during the time she claims the engagement existed.
Fourth, because there appear minor defects in the rulings of the trial court which, though not error, show upon the whole that the defendant did not have a fair trial. The other paragraphs, namely, numbers four, five, eight, nine, and eleven, do not lead to a reversal.
I respectfully dissent, and will briefly state my reasons for thinking each of the above reasons for reversal unsound.
(1) It is stated in the first paragraph of the syllabus that it was error of the. trial court to ask the attorney for defendant if the doctor must not have called either as a physician or a detective. The majority opinion carefully states that this remark would not be reversible error in all cases, but that in this case the issues are very close and therefore the remarks were prejudicial.
Upon general principles, I believe it unwise to distinguish between the different cases. If the error is not pronounced enough to be reversible in all cases, the opinion should be affirmed so far as that assignment is concerned. I do not wish to be understood as sanctioning those remarks, but we should remember that the defendant could *586have guarded against tbe entire incident by asking that tbe jury be excluded during tbe argument of tbis question of law. Tbe plaintiff did nothing whatever to provoke the remark of tbe trial court; it was defendant’s attorney who was arguing with the judge. Why should the plaintiff be penalized so heavily for something which she did not provoke, and which she could not prevent ? No two trial courts conduct a case in exactly the same maimer, and there is no set standard by which it can be said that one method is better than the others. Many trial judges, including the writer when upon the district bench, believe it better to have the juries listen to the law arguments as they thereby become acquainted with the reasons for the exclusion of offered testimony. Again, principles of law can be readily absorbed by juries, and this tends to a more enlightened citizenship as a whole, the jurors being usually men of influence, disseminating the knowledge thus gained amongst their neighbors. The average juryman is not as easily influenced as some appellate courts seem to think, and the writer for one, after presiding at something over a thousand jury trials, has reached the conclusion that they can safely .be intrusted with all the sound legal information that the lawyers and the judge can give them. In the case at bar, the remark was no stronger coming from the lips of the judge, than from the lips of the plaintiff’s attorney, and the same thought had doubtlessly suggested itself to each member of the jury before the trial court mentioned it. The facts were such that the truth must be apparent to everyone. The plaintiff'was a hired girl, a stranger in the place, and absolutely unknown to the physician until he was called upon to treat her professionally. Tie had no interest in her excepting as a patient, and if there is any other cajiacity in which he acted excepting as a physician or a detective, the majority of this court has neglected to mention it. Neither do I believe that a trial court should imitate an oyster. On the contrary, I think the discretion of trial judges should be enlarged. They are men of integrity, learning, and judgment, and can be relied upon to do nothing intentionally wrong. The habit of reversing them because members of the appellate courts think they could conduct the trials in a better manner is one of the greatest evils of our jurisprudence. A reversal in any case is a serious matter, as it means a delay *587of justice, expense to the litigants, expense to the taxpayers generally, and congestion of business in the lower courts.
It is my firm conviction that the jury was not influenced one iota by the fact that the said remark was made by the trial judge instead of by the plaintiff’s attorney. The trial court promptly charged the jury to disregard his remarks when so requested.
I will not dwell further upon this phase of the opinion, as I consider the next paragraph much more important.
(2) It is stated in paragraph six of the opinion that the conversation between the doctor and plaintiff relative to the subjects of the time of the promise of marriage, — whether there had been a promise of marriage, — and relative to the time of the alleged acts of sexual intercourse with McWilliams, were “not privileged, as it is clear that the questions did not call for information necessary to enable the physician to prescribe or act for her.” This I consider a most vicious holding, not only upon the merits of this case, but upon the subject of privileged communication generally. In effect, the majority opinion divides the doctor’s conversation into two parts. That which they concede was necessary for him to prescribe for her, and that portion which they contend unnecessary, and they hold that it was error to exclude the latter part of the conversation. In other words, they put the burden upon this sick woman, while undergoing the agonies of childbirth, to determine at her peril whether the questions asked her by her physician were necessary for her treatment. Thus, when the physician said to her, “Q. Did McWilliams ever promise to marry you ?” then plaintiff must revolve in her own mind the question of her legal rights. She must first say to herself, “Is this question necessary for my treatment, or is the doctor just carrying on a social conversation with me, or is he trying to get information to help McWilliams in case of a trial ?” Having reached the conclusion that the question was not necessary for her treatment, she must say to the doctor: “Now, Doctor, after due deliberation, I have decided that your question is not necessary for you to prescxúbe for my present illness, and therefore I decline to answer you, but, Doctor, if you will ask me questions necessary to aid you in treating me, I will give you all the information you desire.”
This ridiculous situation is a complete answer to the majority opin*588ion, and I could well leave the subject here, were it not that the majority opinion has quoted, from Wigmoi’e on Evidence and three decisions from the Federal, New York, and Michigan courts, certain language which, though since repudiated, and in one instance taken from a criminal ease, is liable to mislead the casual reader of this opinion. To understand the subject if privileged communications, it is necessary to look into the history of this legislation somewhat. At page 2381, vol. 40, Cyc. it is. said: “At common law there was no privilege as to communications between physician and patient, and this rule still prevails where not changed by statute.” The first Code enactment was in New York at the time of the adoption of the Eield Code, about sixty years ago. The statute in this state was, of course, adopted considerably later. The majority opinion, following Mr. Wig-more, states that the statute was enacted to prevent physicians from disclosing to the curious the ailments of their patients, particularly one afflicted with reproachful and unpopular diseases. This, I consider the fundamental error of the opinion. While the statute was doubtlessly intended to cover the evil mentioned, yet, it also intended to prevent other evils which had grown up in the country. See Smart v. Kansas City, 208 Mo. 162, 14 L.R.A.(N.S.) 565, 123 Am. St. Rep. 415, 105 S. W. 709, 13 Ann. Cas. 932, and note. At the time of the enactment of most of the statutes, many railway companies, mining corporations, factories, and other large enterprises were establishing hospitals for the treatment of their employees. The physicians in charge of those hospitals were dependent for their positions upon the good will of the corporations, and it was urged that some at least of those physicians were taking advantage of their positions to obtain from the patients information which would tend to defeat a claim for damages. The legislatures of the various states probably felt that injured employees were unable to give a true account of the manner of their injury, and wholly unable to withstand any “third degree work,” especially by a physician in whom they should have the utmost confidence. That the legislature intended to remedy this evil is apparent to everybody, excepting Mr. Wigmore and the few courts who have followed him. Upon the enactment of the first privileged communication statutes desperate assaults were made upon the law in attempts to secure the admission of such evidence upon the grounds that *589tbe information obtained by tbe physician was not necessary for medical treatment. In tbe early days a few courts were deceived by this sophistry, and those cases are quoted in the majority opinion. However, it did not take long to demonstrate the injustice of this holding, and in recent years there has been a decided tendency towards a liberal construction of the statutes to protect the patient against any traps set for him by the physician. Among the later decisions will be found a case from New York, one from Michigan, and others from the Federal courts, which in effect overrule the earlier cases relied upon by the majority of this court. I have taken the trouble to read all of the cases cited by the majority of this court as well as many others, which for some reason they seem to have overlooked, and I have discovered that, with three possible exceptions, none of the cases cited in the majority opinion support the same, while on the contrary the cases as a whole are simply massed against it. I will quote briefly from some of those eases.
Re Gruendl, 102 Wis. 45, 18 N. W. 169, says: “The purpose of the statute . . ., 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.”
In McRae v. Erickson, 1 Cal. App. 326, at page 332, 82 Pac. 209, it says: “The intention of the statute is to exclude all statements made by a patient to his physician while attending him in that capacity for the purpose of determining his condition; nor does this construction do violence to the language of the act liberally construed, which we think is to be understood as forbidding a physician to be examined ‘as to any information acquired in attending the patient, the acquisition of which was necessary (or which it was necessary for him to acquire) in order to enable him to prescribe or act for the patient.’ Of this necessity, from the nature of the case, the physician must commonly be regarded as the sole judge, for it would be obviously unreasonable to require of the patient the exercise of any judgment with reference to the propriety of the questions asked by his physician.”
The California statute is almost identical with ours, and reads as *590follows: “A licensed physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.” Kerr’s Code Civ. Proc. § 1881..
When any person attempts- to avoid the force of this holding by-saying that the statute differs from ours, he has taken untenable-grounds. In Battis v. Chicago, R. I. & P. R. Co. 124 Iowa, 623, 100 N. W. 543, it is said: “It may be true, possibly, that the knowledge-acquired by the physician was not, in point of fact, and strictly speaking, necessary and proper to enable him to perform the functions of his-office, but of this we are not in position to judge, nor are we called upon to determine what the fact might be when reduced to a last analysis. It was the condition of plaintiff that was the subject of the inquiry, and it was the professional judgment of the physician that was. called for. The privilege cannot be subject to measurement by metes and bounds, and we may well assume that all that was told to the-physician, and all that was developed by his examination or came under his observation, was necessary and proper for his understanding of the condition of his patient. The relation of physician and patient being established, if, by any fair intendment, communications made have relation to the physical or mental condition of the patient, we are bound to hold them privileged.”
Briesenmeister v. Supreme Lodge, K. P. 81 Mich. 525, 45 N. W. 977, says: “This statute covers all information which Dr. Inglis acquired by observation while in attendance upon Mr. B. of his condition or ailments, which in any manner enabled him' to prescribe for him, as well as to communications made to him by his patient. . . „ All disclosures by the patient to his physician respecting his ailments are privileged, whether they are necessary to enable the doctor to prescribe for him as a physician or not.”
Obermeyer v. F. H. Logeman Chair Mfg. Co. 120 Mo. App. 59, 96 S. W. 673, is a case where the physician’s testimony shows that he had a double purpose. That court says: “The fact that Dr. A. examined respondent at the instance and request of appellant, for the purpose of treating him, did not remove his incompetency. . . . The doctor’s testimony shows that he had a double purpose in holding the interview with respondent: First, to ascertain his condition *591for the purpose of treating him professionally; second, to ply the boy with questions while he was suffering from shock and severe pain as a result of the recent injury, for the purpose of getting some statement or admission from him that would be advantageous to his (Amyx’s) employer, the appellant, in case the boy should sue to recover compensation for his injury. In these circumstances we are not inclined to split the interview into parts and determine what parts were and were not necessary, to enable the doctor to prescribe for the respondent, but to hold him incompetent to testify to any part of the interview.”
In Pennsylvania Co. v. Marion, 123 Ind. 415, 7 L.R.A. 687, 18 Am. St. Rep. 330, 23 N. E. 973, 3 Am. Neg. Cas. 261, the court says: “The physician had no business to interrogate his patient for any purpose or object other than to ascertain the nature and extent of the injury, and to gain such other information as was necessary to enable him to properly treat the injury and accomplish the object for which he was called professionally; and such communications are privileged, and he cannot disclose them. If the physician took advantage of the fact of being called professionally, and while there in that capacity made inquiries of the injured party concerning matters in which he had no interest or concern professionally, or for the purpose of qualifying himself as a witness, he cannot be permitted to disclose the information received. The patient puts himself in the hands of his physician; he is not supposed to know what questions it is necessary to answer to put the physician in possession of such information as will enable the physician to properly treat his disease or injury, and it will be conclusively presumed that the physician will only interrogate his patient on such occasions as to such matters and facts as will enable him to properly and intelligently discharge his professional duty, and the patient may answer all questions propounded which in any way relate to the subject or to his former condition, with the assurance that such answers and communications are confidential, and cannot be disclosed without his consent.”
The Indiana statute is worded somewhat differently, but has the same general object as our own, and in this connection I assert that, while all of those privileged communication statutes are worded slightly different, they were intended to cover the same evils, and a case under one is exactly in point under another, and it is idle to attempt to *592distinguish cases from the different states upon the ground that the statutes are worded slightly differently.
In Doran v. Cedar Rapids & M. C. R. Co. 117 Iowa, 442, 90 N. W. 815, upon similar facts, the court says: “We are not referred to any authorities which make this distinction. It seems to us that whenever an injured party consults a physician, as physician and discloses to him his physical condition, and thus enables him to obtain information which as an ordinary person he would not have obtained, such physician is prohibited from testifying with reference to the knowledge thus obtained.”
See also, to the same effect, the following additional cases: Kling v. Kansas City, 27 Mo. App. 231; Edington v. Mutual L. Ins. Co. 67 N. Y. 185; Feeney v. Long Island R. Co. 116 N. Y. 375, 5 L.R.A. 544, 22 N. E. 402; Re Hunt, 122 Wis. 460, 100 N. W. 874; McRae v. Erickson, 1 Cal. App. 326, 82 Pac. 209; State v. Kennedy, 177 Mo. 98, 75 S. W. 979; Grattan v. Metropolitan L. Ins. Co. 80 N. Y. 281, 36 Am. Rep. 617; Dambmann v. Metropolitan Street R. Co. 55 Misc. 60, 106 N. Y. Supp. 221; Jones v. Brooklyn B. & W. E. R. Co. 21 N. Y. S. R. 169, 3 N. Y. Supp. 253; Sloan v. New York C. R. Co. 45 N. Y. 125; Re Redfield, 116 Cal. 637, 48 Pac. 794; Griffiths v. Metropolitan Street R. Co. 171 N. Y. 106, 63 N. E. 808, 11 Am. Neg. Rep. 620; Green v. Nebagamain, 113 Wis. 508, 89 N. W. 520; Colorado Fuel & Iron Co. v. Cummings, 8 Colo. App. 541, 46 Pac. 875; Pennsylvania Co. v. Marion, supra; Thomas v. Byron Twp. 168 Mich. 593, 38 L.R.A.(N.S.) 1186, 134 N. W. 1021, Ann. Cas. 1913C, 686; Union P. R. Co. v. Thomas, 81 C. C. A. 491, 152 Fed. 365; and note at page 945, vol. 13, Ann. Cas.; Munz v. Salt Lake City R. Co. 25 Utah, 220, 70 Pac. 852, 13 Am. Neg. Rep. 214; Patterson v. Cole, 67 Kan. 441, 73 Pac. 54, 14 Am. Neg. Rep. 543; Madsen v. Utah Light & R. Co. 36 Utah, 528, 105 Pac. 799; Burgess v. Sims Drug Co. 114 Iowa, 275, 54 L.R.A. 364, 89 Am. St. Rep. 359, 86 N. W. 307, 10 Am. Neg. Rep. 42; Re Bruendl, 102 Wis. 47, 78 N. W. 169; 10 Enc. Ev. 1064; 23 Am. & Eng. Enc. Law, 86, 87; Potter’s Dwarr. Stat. 202.
Space forbids detailed analysis of more of the above cases, but, upon their authority, I assert that, with three possible exceptions, and one of these a criminal case, the cases cited by the majority opinion do not sustain the doctrine announced therein, while the cases as stated above *593are simply massed against it. Applying the law to the case at bar, we find that plaintiff has testified positively that the doctor was acting as her physician.
In this connection it is interesting to note that defendant made four offers of proof. He offered to prove that the conversation had with the plaintiff, upon which the majority opinion bases reversal, was first had with the plaintiff upon the occasion of his second visit. Upon this occasion the doctor testifies: “This second trip I have just been asked about was made in my professional capacity. To see her as a physician. Any talk I had with her was while I was there in attendance and inquiring about her health and her condition and that of the child. I was talking with her in reference to her condition, when I asked any questions which I did, or gained the information that I did.”
The identical offer was made regarding the third conversation, upon which the doctor has testified that he did not make the third visit as a physician, but, having later changed his mind, he testifies:
Q. Doctor, this talk that you had on that occasion you had with the patient, the plaintiff in this case, with reference to assisting you or enabling you to prescribe and to act for her, did you not?
A. Yes, sir.
Again he testified:
Q. Now, it is a fact, is it not, that any information which you received at that time was acquired while you were attending the patient and asking questions concerning her health, which would be necessary for you to prescribe or act for her in her physical condition; that is true is it not?
Q. By the court. If you found she needed it ?
A. Yes.
It thus appears that the doctor has testified positively that he was her plycsician, -and had questioned her along the lines indicated to enable him to prescribe for her. The doctor considered the information necessary for her treatment. The trial court has held that the conversation was necessary and privileged, and his holding should not be reversed excepting for an abuse of discretion. The patient was a hired girl, poor and friendless, a stranger in the country and absolutely unknown *594to the doctor. Any conversation that be held with her must have been either in his professional capacity, as a private detective of McWil-liams, or strictly social. We can dismiss the last without comment; the doctor had no social interest in the girl. Let us say that his high sense of honor prevented him from interviewing the girl in the interest of McWilliams; then why did he ask her about her relations with Mc-Williams? The majority opinion says that the information was not necessary. My learned brothers should have said that they saw no necessity for it. An examination of the evidence quickly discloses why the doctor considered this information necessary. It is so well known that the courts can almost take judicial notice of the fact that the mothers of illegitimate children sometimes attempt to injure the child, and sometimes attempt to kill the father, and sometimes attempt suicide. Any physician who does not know those simple facts and make inquiry of the patient along this line is neglecting a serious duty. That there was such a necessity in this case will be seen by reading the following testimony quoted from the record: The plaintiff states: “Mc-Williams did state to me after the baby was born, that he did not know whose baby it was. This was four days after the baby was born. George came to the room about ten minutes after the baby was born. The doctor was in there. He heard the baby cry and says: ‘My God, my God!’ and went out again. The first conversation I had with him after the haby was born, I said, ‘George, can I talk with you ? and he said, ‘Yes.’ I said, ‘George, what is to become of me ?’ He said, ‘Well, you have dragged all this upon yourself; you can stay here until you get well and then I don’t care where you go,’ and I said, ‘What shall I do with the baby?’ and he said, ‘You can put the baby in a convent.’ ” Plaintiff’s sister, who was a witness upon the trial, testified to a conversation between plaintiff and defendant had a few days after the baby was born, wherein the plaintiff “was crying so hard that I had to go out there; and when I came in she says, ‘Selma, I am all alone in the world with my disgrace, what shall I do ?’ I says, ‘Anna, you are not alone in your disgrace. George McWilliams is the father of your child, in the rocking chair in the sitting room, and he has got to marry you.’ ” Whereupon the witness turned to McWilliams and said: “ ‘If you do not marry her, you will pay for this. If there is a law in the state of North Dakota we will go for it, and we will see what we can do,’ and *595then my sister cried so hard, and she says: ‘Oh ! don’t fight with him. All I want is 5 cents’ worth of carbolic acid, and that is all I want because I will never leave this house with the baby in my arms; when I leave this house I leave in my'coffin/ ” These extracts from the testimony are given to show that the doctor well knew the necessity for ae-certaining the mental condition of the plaintiff to determine whether or not there was danger of suicide, injury to the child, or injury to Mc-Williams. In making those inquiries to properly care for his patient, he naturally learned the facts regarding the date of intercourse and the dispute regarding marriage with McWilliams, and he should not be allowed now to disclose that information without her consent. My conclusion is that the testimony of the doctor should have been excluded.
(3) In paragraph ten of the syllabus it is said, “Certain evidence examined and held erroneous.” In the body of the opinion it is explained that the errors consisted in exclusion, of testimony, for example, that plaintiff received calls from other men during the time of the alleged engagement to McWilliams.
Taking up the alleged exclusion of the evidence as to visits of other men. I quote from the record to show that every scrap of this kind of evidence was admitted without objection, unless some plain violation of the rules of evidence appeared.
The specification of error upon which the majority opinion pass is as1 follows: “The court erred in sustaining plaintiff’s objections to the following questions propounded to plaintiff on' cross-examination, to wit:
“Q. Later than that there was another man out there one night to call on you, was there not ?
“Q. In the month of September did you have a man call on you at the McWilliams’s place when you were there alone?
“Q. You sent for him to come up to your place, to the McWilliams’s place ?
“Q. Did you send for Elmer ITanson to come up after the baby was born ?”
Those are four questions asked of the plaintiff herself upon cross-examination, excluded by the trial court, and held by the majority to be error. The majority opinion states a lot of elementary law relative to the right of the defendant to show plaintiff’s relations with other *596men at tbe time she claims to have been engaged to hiim The opinion was evidently written without a close examination of the record. It appears from a careful examination that the four questions above mentioned were shut out upon perfectly proper grounds, and that the plaintiff was cross-examined upon this very subject until counsel got tired and quit. To show that this is the case, I set out herein a part of her testimony containing the rulings of which complaint is made.
The plaintiff was asked upon cross-examination:
Q. Now you say that when you went to those various places you asked George whether you could go or not ? . . .
A. I stated that on some occasions I asked George if I could go. I asked him to get his permission to go. Tie told me that I could go. He says it is all right if I went. He says he don’t care to go out any place anyway, and if I get a chance to go out with somebody he said it is all right, because he was too old to go to dances and entertainments.
Q. And he told you that it was all right for you to have young men taking you around ?
A. Tes, he didn’t object, he said it was all right. He told me it was all right and wanted me to go. On the occasion I went with Hanson to the dance, I left McWilliams’s place about 8 o’clock in the evening and did not get back until about breakfast time. My sister and I went to a bowery dance. My sister said it was Swanson’s grove. George did not go along. George was at the Bryan meeting and at the Billy Bennett show when I went to those place with Hanson. Between the 1st of April and the 1st of July, I was in Hanson’s company four times. I was out with him four times. He was there one Sunday to visit. That is all I can remember.
Q. In the first week you were at McWilliams’s place he called nn you, didn’t he?
A. Yes.
Q. That wasn’t Sunday?
A. No, it was the middle of the week. Not the first time. The first time he called on me was in the afternoon of the second week. I used to talk with him over the phone. He used to call me up and talk to me.
And again she testifies: “I have testified in regard to a man named *597Elmer Hanson. He came to McWilliams’s place a few days after I got there. It was not the first week. It must have been the second week. He remained there about an hour.” And so on for many pages of the printed record. She further testified that Hanson was her sister’s intended husband.
After all of this testimony, she was asked the following question:
Q. Later than that there was another man out there to call on you, was there not ?
A. I can’t remember.
Mr. Cuthbert: That is objected to as too indefinite and not proper cross-examination unless for an impeaching question, and then it is too indefinite as to time and as to place and description. (Sustained by the court and exception granted defendant.)
The Court: The main question in this case is, Was there a promise of marriage ? There may have been a thousand men out to see her, but the main question is, Was there a promise of marriage ?
Mir. Sinkler: I will make an offer of proof.
The Court: There is no use making an offer of proof; the best way is to ask legitimate questions, but I will allow you to make any offer of proof you wish. Have you it in writing?
A. I have.
The Court: Submit it to me.
Mr. Sinkler: I have not on that particular point. ■
Q. In the month of September did you have a man call on you at the McWilliams’s place while you were there alone?
Mr. Cuthbert: Objected to as improper cross-examination, not a proper impeaching question, and immaterial. (Sustained and exception granted.)
A. In the month of April I did not have a man call on me outside of Elmer Hanson at night. There was never anyone else but Elmer Hanson. I had a conversation with Elmer Hanson after the baby was born.
Q. You sent for him to come up to your place, to the McWilliams’s place ?
Mr. Cuthbert: Objected to as not proper cross-examination, not a proper impeaching question, and as immaterial. (Sustained and exception granted.)
A. I had a talk with Elmer Hanson over the phone a few days after the baby was born. In the conversation over the ’phone I did not say *598to Elmer Iianson, “Come up and see tbe baby, it looks like George. God knows you ain’t tbe father, and we don’t blame you for it.” I did not say that in substance.
Q. Hid you send for Elmer Hanson to come up after tbe baby was born ?
Mr. Cuthbert: Objected to as immaterial, not proper cross-examination, and not proper impeaching question. (Sustained and exception granted.)
How, in tbe face of the record, the opinion can assert that “error occurred in excluding the evidence offered by defendant to show that, during the time the plaintiff claimed to have been engaged to marry him, she had received other men as company,” is absolutely beyond my powers of comprehension. As stated above, the plaintiff was cross-examined upon this subject without let or hindrance, and without objection, unless the questions themselves contained some specific objection. Thus, to the first question, namely: “In the month of September, did you have a man call on you at the McWilliams’s place while you were there alone?” the objection was properly sustained if for no other reason than the lack of a definite date. To the question: “Later than that there was another man out there one night to call on you, was there not?” the objection was interposed that it was too indefinite as to time and as to place and description. This objection was sustained and very properly so. The question was not confined to any period of time, and certainly not to the time during which it was alleged that the engagement existed. And to the question: “You sent for him to come up to your place, to the McWilliams’s place?” the objection was interposed and sustained for the very good reason that no time was specified as the date of such visit. And the last question, to- wit, “Did you send for Elmer Hanson to come up after the baby was born ?” for the first time is definite as to time, and shows that the visit occurred after McWilliams had repudiated the alleged contract of marriage. Certainly the fact that she sent for a friend after her repudiation by McWilliams in no manner tended to show conduct inconsistent with her claim that an engagement had existed nine months before that time. It thus appears beyond question that no evidence sought to be elicited by proper questions was excluded relative to her conduct with other men.
*599(4) In tbe second paragraph of the syllabus it is stated that many minor errors disclosed in the record, all unfavorable to the defendant, considered in connection with the whole record, indicated that he- did not have a fair trial. In the body of the opinion, it is said': “We do not say that any one of these minor errors was sufficient to justify a reversal, but we do think they go a long way towards showing that defendant did not have a fair trial.” These quotations are all that appear in the opinion, and we are left in the dark as to the number and identity of those “minor errors.” It is, however, not unfair to assume that they are less serious than the one treated by me in the last paragraph, and I decline to concur in a reversal based upon a cat in the bag proposition.
In conclusion, and in a general way, I consider a reversal in any case a misfortune. It delays justice, and makes costs to the litigants and the community. In the case at bar the injustice is especially marked. Plaintiff is a hired girl who earns $6 per week. Defendant admits he is worth over $10,000. This action was begun four years ago this month, and has been very expensive litigation. To order a new trial may practically deny plaintiff any legal redress whatever.
Goss, J. I concur in the foregoing dissent.