(dissenting). The record in this case is voluminous. A week was consumed in the trial. The transcript of the proceedings covers over 500 pages. The majority opinion reverses the judgment and orders a new trial upon two grounds. First, that primarily error occurred in permitting the introduction of a contradictory statement for purposes of impeachment. Second, that secondarily error occurred in submitting to the jury the preliminary question concerning the application of such contradictory statement. Otherwise, the majority opinion upholds the validity of the proceedings had and the sufficiency of the evidence to warrant'recovery. The objectionable testimony for which reversal is had, through the majority opinion, occupies a few lines in the long transcript of proceedings. Robert Schmidt, the father of the girl for whom damages are claimed, was called in rebuttal, lie testified that he had a conversation with Dr. McOannell in the presence of his wife and daughter at the office of the doctor some three years previous. Dr. McOannell asked him “Who did this?” (Referring to a previous operation.) He replied, “Dr. Stone.” Then follows the objectionable testimony.
“Q. What did Dr. McOannell say ?”
“A. It is a rotten job.”
*106“Q. Did Dr. McOannell at that time s&y to you ‘It is a wonder your' daughter can swallow at all. V ”
“A. Yes, sir.”
“Q. Now did Dr. McOannell look into the throat of your daughter at that time and call in the nurses into his office and show them the throat at that time ?”
“A. Yes, sir.”
“Q. Did he, in substance, after he had called the nurses in say, ‘Aint it awful V ”
“A. Yes, sir.” (pages 453 to 456.)
Louise Schmidt, the daughter for whom damages are claimed, in rebuttal testified that she heard her father tell Dr. McOannell that Dr. Stone had performed the operation. She did not testify in rebuttal that Dr. McOannell said it was a rotten job or that it was a wonder that she could swallow at all. This testimony, together with the testimony adduced upon cross-examination from Dr. McOannell, is made the basis for a reversal upon the ground that it was an attempt to impeach the doctor, who was an expert witness for the defense upon a.collateral matter. Of course, if this rebuttal testimony did not concern a collateral matter and was properly admissible, then the submission of the preliminary question to the jury concerning the same was within the discretion of the trial court and was not error. King v. Hanson, 13 N. D. 85, 103, 99 N. W. 1085. A brief review of the record proceedings must be made in order to comprehend the application of the impeachment questions to the issues and evidence involved.
The complaint alleges, among, other things, that the defendant doctor, in June or July, 1915, was employed as a physician and surgeon for the purpose of performing an operation for the removal of tonsils and adenoids; that, in the performance of the operation upon the throat of the girl, then aged eight years, the doctor negligently and carelessly removed the uvula from the throat and mouth of the girl and negligently and carelessly maimed, disfigured and injured her; that he negligently and carelessly removed such uvula without the consent and authority of the plaintiff or any person in her behalf; that he entered upon the employment, to perform the operation for the removal of adenoids and tonsils from her throat hut that he performed such operation in such an unskillful, careless, and negligent manner that he removed the uvula from *107her mouth and throat to her damage, etc. To this complaint the defendant doctor interposed an answer generally denying all of the allegations of the complaint excepting that he was a licensed physician and surgeon. He specifically alleged that he had no recollection or knowledge of ever having been employed by the plaintiff or of having performed any surgical operation upon her throat for the removal of tonsils or adenoids or otherwise, and he specifically denied the performance of such operation. Further, he alleged, without admitting the performance of the operation, that if he did perform the same it was done properly, skillfully and carefully. He further specifically denied that she was injured and damaged in any way thereby. It will be seen, therefore, that the specific issues as framed were, first, whether the defendant doctor performed the operation, or any operation, on the plaintiff girl; and, second, if he did so perform an operation for the removal of tonsils and adenoids, whether he negligently, or carelessly or without an authorized consent, removed the uvula so as to be liable. In the record much testimony was adduced in proof of, and denial of, the performance of an operation by the defendant doctor. The mother 'of the plaintiff girl testified that she knew Dr. Stone. Some years previously she had consulted him. In 1915 she went to him with her daughter Louise. Her daughter was not then sick but she thought she was in good condition for having her adenoids removed. She saw the doctor and told him what was the matter with the girl; that she had to have her adenoids removed and she went in time so that it would be all right before school started. Then he got ready for the operation and took the girl up in the operating room. She took her to Dr. Stone to have her adenoids removed. She knew her daughter needed an operation for adenoids because it seemed to be hard for her to breathe; to trouble her when she had a cold. Before this time she had taken her daughter to Dr. Moeller who had examined her tonsils. Dr. Moeller also examined her adenoids. He asked her to wait until she got in good condition. She got medicine from Dr. Moeller. She thought she would rather go to Dr. Stone. Concerning the question whether the tonsils were to be removed in Dr. Stone’s office, she testified “That is one operation, isn’t it? They do both.” Concerning the fact that adenoids and tonsils are entirely different things, she testified “I know that, but they cut them out at the same time.” When she went to Dr. *108'Stone’s office she liked to have the tonsils removed, too. “We thought he could take care of her.” The daughter Louise testified that she ¡and her mother went to Balfour to see Dr. Stone for an operation for tonsils; that she knew Dr. Stone and he operated upon her. The defendant denied performance of this operation. He asserted that he never saw the mother of the plaintiff before. He adduced evidence to •show his physical inability at the time of the operation, through an .accident, to perform the same.
Dr. Stone, when called for cross-examination under the statute, testified that the adenoids are between the nose and the mouth and the back part of the throat. He does not know how for the distance between the uvula and the tonsils but it is not an inch. It depends on how long the uvula is. Adenoids accumulate above and back of the uvula. The uvula is a part of the sofe palate. He does not know what the function of the uvula is. When you remove tonsils, you remove tonsils and not the uvula. When you remove adenoids, you remore adenoids. It would be improper to remove the uvula in an operation for adenoids and tonsils. He knows he would not do it.
Dr. McCannell was an expert witness for the defense. His testimony occupies some 88 pages of the transcript of the evidence. He is an eye, ear, nose, and throat specialist with a wide and extensive practice at Minot since 1906. At the trial he examined the girl to see the condition of her tonsil area and her upper pharynx. He made such an examination that he knew the condition of that area and also of her throat. He knew the girl. She was in his office in September, 1919. The trial was had commencing January 31st, 1922. At that time, in September, 1919, he made an examination of this girl’s throat and mouth. He found that the lower poles of both tonsils, that is, the part of the tonsils down near the tongue or at the base, were in a diseased condition and he remedied that condition by removal. The upper portion of the tonsils then were entirely gone. It is his custom to make a record concerning every patient; to secure a history of the case. It is his custom to write down everything they tell him which is important to the case. He did that in this case and produced his record. He got the history of the case from her father, Kobert Schmidt, her guardian in this case. On this record there appears language to the effect “had tonsils removed six years. Moeller.” It *109was the doctor’s practice to ascertain who had done any previous operations. The word “Moeller” indicated that Dr. Moeller had performed the previous operation of removing the tonsils. There was also a sort of pencil sketch of the mouth upon this record card. This card also disclosed that the uvula was gone and that there was a scar in the soft palate. The doctor says that the uvula might he considered a very small portion of the sofe palate; that the soft palate is still there, intact, with the exception of the uvula. Upon cross-examination the doctor testified that the father, with this little girl, came to his office. He has no recollection of the woman, that is, the mother, being there. (She testifies that she was there; that her husband tolcl the doctor that Dr. Stone had operated.) He first had a conversation with these persons. He has no independent recollection that he can recall of any conversation that took place at that time. Mr. Schmidt, the father, did the talking. He had nurses there in a hospital upstairs. At the time of the examination he did not call in these nurses and tell them to look at this little girl’s throat. It might have occurred in the operating room but not in the office. Then upon cross-examination he was asked several questions concerning the inquiries that he made about this little girl’s condition. Then he was asked the following question:
“Q. Did Mr. Schmidt not say to .you then when you asked ‘Who did this ?’ ‘Dr. Stone,’ and did you not say, ‘That is an awful job V ”
“A. If he said Dr. Stone it would have been on the record.”
“Q. I did not ask you that.”
“A. Then he didn’t say that.”
“Q. Did you say that ?”
“A. I did not.”'
“Q. And you had no independent recollection of having said that V*
“A. No, I never said that.” (223)
He further explained that he did not make any notation of this fact that she had had adenoids because in practically every case of diseased tonsils in a child of that age, there are adenoids as well. Then he was asked the question:
“Q. Did you say anything to this patient at that time in regard to her swallowing ?”
“A. I can not recall definitely.”
*110“Q. Did you not say to Mr. Schmidt, in substance, that you wondered at her being able to swallow ?”
“A. No, I don’t remember that.” (224)
No objection was made by the defense to these questions and answers. They were received without objection. Further, upon cross-examination, this doctor testified that he discovered an unnatural condition in the examination that he made. The lower poles of the tonsils were still there. The upper and middle portions of the tonsils had been removed, the lower part, not at all. Tie looked at the time at the ■place where the uvula ought to be. It was gone. He noticed no injuries to the soft palate itself. There might have been some scars on It. The witness took the card and before the jury, using the plaintiff as an exhibit, he showed where the scar was. He indicated on the patient the place where the scar was at the time she came to his office, lie pointed out pillars that extended down to the tongue; also the soft palate there; also that the small portion of the soft palate which was adhering to the anterior pillar was scarred: that the scar is not there now. He removed it. There is no scar on either side and no remains of tonsils. Otherwise, in his evidence the doctor explained the function of the uvula and the methods of operation in removing tonsils and adenoids. From the result of the examination made before and after the trial he stated that the throat of this little girl was in good condition ; that it showed evidence of the previous operation but at the present time, with the exception of the absence of the uvula, the throat seemed to be a good functioning throat. He testified that the uvula is frequently removed, ofttimes with beneficial results; that it has a tendency to become inflamed easily and swollen up like the tonsils; that he has never seen a case of removing of uvula with any injurious effect; that it is often removed to prevent recurrent inflammation with. no bad results; that, in general, the removal of the uvula would not cause headache or inhibit the action of swallowing; that the removal of this uvula from this girl’s throat did not, in his opinion, in the least affect her health; nor has it affected her voice; that the removal of the uvula has no detrimental effect whatever; that, in operations, there is more danger in removing accidentally the uvula in a tonsil operation than in an adenoid operation. The doctor further testified that he did not consider that the uvula performed any function. He has come to *111the conclusion that the girl is shamming and -trying to fool him. Concerning the scar that he observed on the soft palate, he considered it a very superficial wound but such a sear as he thought it advisable to make a note of. Further, lie testified that he observed the general physical appearance, size and condition of this girl and he found no evidence of any malnutrition of the body; that she was a pretty good sized girl for a girl of her age. Finally, at the conclusion of his examination, counsel for defense asked him this question: —
“Q. From the examination of this young lady’s throat, do you find there is anything in the formation or condition of her nose and mouth and throat at the present time that would hinder her eating any old kind of solid foods ?”
“A. I can’t see it?” (274)
The majority opinion finds that the testimony of Dr. Johns, the expert for the plaintiff, was sufficient to establish a causal connection between the loss of the uvula and the complaints and physical condition testified to by plaintiff and her mother. It is urinecessary, consequently, to state or review the expert testimony of Dr. Johns and the physical condition or defects of plaintiff as shown in the evidence.
The majority opinion states that no negligence is alleged based upon the adenoids or tonsilotomv operations per so. If the plaintiff was able to establish to the jury’s satisfaction that the defendant performed the operation, the gist of the action then was whether the defendant negligently, or carelessly, or without authorized consent, removed the uvula, and whether the plaintiff was damaged thereby. This is an action for malpractice. It is founded on a contract though sounding in tort. 30 Cyc. 1538. Dr. McCannell was a very important witness, an expert, for the defense. His testimony was of strong probative force, not only to show that the defendant did not perform the operation but also, if he did, that the removal of the uvula when the tonsils are removed is a proper thing for a skillful physician to do and is not a negligent and careless act; that, furthermore, the removal of the uvula occasions no damaging results; that, on the contrary, it is beneficial, since the uvula is a useless appendage serving no function and being subject to inflammation. Very readily, from the testimony given by Dr. McCannell through the opinions that he gave by his direct knowledge of his own operation, of his examination of the girl in 1919, *112and at the trial, the jury had presented for its consideration strong-testimony to the effect that the removal of a uvula was neither a negligent nor careless act; that, in fact, its removal served beneficial purposes; that, in fact, there was nothing wrong with the girl in 1919 when he examined her excepting the diseased lower poles of her tonsils and the scar on the soft palate which he then remedied and corrected by removal; that there is nothing wrong with her at the present time so far as a good functioning throat is concerned; that furthermore, she is well nourished; that she can swallow any sort of solid foods and that in fact she is shamming. In other words, touching the gist of the action, the doctor’s testimony as an expert is to the effect that the removal of a uvula in a tonsilotomy operation is neither a negligent nor careless act; that, if done without consent, no damages have been occasioned; rather, beneficial results have occurred. His testimony, in general effect, gave to the girl a clean bill of health at the time of the trial regardless of the operation performed by the defendant and by himself. On the contrary the plaintiff presented testimony through an expert and otherwise that the functioning of the girl’s throat through and after this operation by the defendant doctor had been seriously impaired. It may not he predicated upon this record that Dr. Mc-Cannell through his operation in removing the lower poles and the scar on the- soft palate was unskillful, negligent, or was in any manner the cause of plaintiff’s present condition. No claim in that regard is made.
Hut the majority opinion asserts, concerning the contradictory statements made by this expert, that there is no evidence to show that such remarks had reference to the removal of the uvula; that they might refer to the general condition of the throat, or to the operation for the adenoids, or tonsils; that the evidence fails to show that such contradictory statements had reference to the only issue in the lawsuit, namely, the alleged negligent removal of the uvula; that accordingly, no foundation having been laid, the evidence in rebuttal to show such con- ■ tradictory statements should have been excluded. The issues concerning this question, as heretofore stated, related to a careless, or a negli•gent, or an unauthorized, removal of the uvula and also to the question of whether plaintiff had been damaged. The issues were broader Than a question of negligent removal. A negligent removal, an accidental removal, an unauthorized removal, as well as the question of any damages, were involved. In view of the issues as above stated and in view *113of the direct consideration that this expert gave to these issues by his testimony, it appears, in my opinion, that it is a splitting of hairs to infer that his contradictory statements might have referred to the removal of the adenoids or the tonsils. In this regard it is to be noted that Dr. MeOannell made a notation on his card that the uvula was removed. He noted that there was a scar on the soft palate. He noted that a previous operation upon the tonsils had been performed. He knew that the adenoids had been removed. The patient was before him for examination in 1919 to then submit to an operation to remedy existing conditions then in her throat. He made the examination for that purpose. He remedied the condition existing by an operation. That operation did not cover any operation upon the adenoids, or upon the middle or lower poles that the defendant doctor had operated upon before. It consisted of an operation of the lower poles of the tonsils and of the removal of the scar where the uvula had been. Surely, if the “awful job” that he mentioned had reference to the operation for adenoids or for tonsils, the doctor would have remedied this “awful job” on the tonsils and on the adenoids. Properly, accordingly, it was for the jury to say whether or not he was of a different opinion in 1919 about taking out the uvula than he was in 1922 before the jury when he said that the taking out of a uvula was a proper and beneficial thing to do. It was not a collateral matter; a proper foundation had been laid. It was well settled that if there is any inconsistency between the belief of a witness concerning certain matter as indicated by his previous declarations and that which would naturally be indicated by his testimony, such prior declarations may be shown although not directly contradictory of any specific statement made on his examination. 40 cyc. 2704; Handy v. Canning, 166 Mass. 107, 44 N. E. 118; Whipple v. Rich, 180 Mass. 477, 63 N. W. 5; McClellan v. Ft. Wayne & B. I. R. Co. 105 Mich. 101, 62 N. W. 1025. In my opinion such statements of this expert, if made in 1919, were directly contradictory to his evidence and opinions in a vital matter in issue before the jury, namely, the question whether the removal of the uvula was negligently or carelessly done; or, if done without consent, whether or not benefits flowed therefrom instead of damages. Concerning unauthorized operations see 30 Cyc. 1577; notes in 50 L.R.A.(N.S.) 880, and Ann. Cas. 19160, 1107. The judgment should be affirmed.