DISSENTING- OPINION.
Physician: Competency: Waiver. But before stating those reasons, it may not be out of place to say that there is no question raised as to the incompetency of the witnesses Drs. Phelps and Christie, to testify in this case, without the plaintiff, by implication, waived his right to object to their incompetency. Not *42only that, but the opinion of my learned associate correctly concedes, as all the authorities show, that they, under our statutes, were incompetent to testify in the case without, as stated, the plaintiff, by implication, waived their incompetency.
WOODSON, J.I dissent from the opinion written in this case by my learned associate, Judge Paris, for the reasons to be presently stated.
*42With these preliminary observations, I return to the reasons for my dissent to paragraph two of said opinion.
First. It is therein stated and held that, because the plaintiff testified fully as to his injuries and the treatment he received therefor at the hands of his physicians, he thereby, by implication, waived his right to object to the incompetency of his physicians to testify-in the case.
Let us examine that question and reason together regarding it.
The plaintiff had the absolute and unqualified legal right to testify in his own behalf, as provided for by section 6354, Revised Statutes 1909; and he also had the undoubted legal right to object to the incompetency of the witnesses, Drs. Phelps and Christie. [Sec. 6362, R. S. 1909.] In other words, the plaintiff unquestionably possessed both of those rights, as provided for by these sections of the statutes; and the mere exercise of the former right did not destroy the latter. There is no language contained in either of those sections lending color to any such contention, and by so holding, the court must of necessity read into section 6362 a proviso, to the effect, that a patient shall not enjoy the right thereby given, if he should exercise .the right given to him by said section 6354.
If it be true, that the mere fact that a person in exercising one. of two absolute rights which he possesses, of necessity waives the other, then the law is a snare and a fraud to catch and outrage the unwary, by declaring unto him that he has certain rights, but if he dares exercise one of them, he thereby destroys the other.
*43With, all due regard for the opinion of my learned associate, such a doctrine is nnsonnd and vicious, both in principle and practice, and never had any real foundation whatever upon which to stand, except the bold statement of Mr. Wigmore, in his work on evidence, which is generally recognized by both the bench and bar to be an unfair, if not a biased, treatise upon the law of evidence.
Second. Nor, in my opinion, did the plaintiff waive the incompetency of Drs. Phelps and Christie, by not objecting to the incompetency of Dr. Elston, when introduced as a witness by the defendant .
Section 6362, Revised Statutes 1909, disqualifies one and all physicians to testify as to any information acquired by him or them while attending a patient in a professional capacity, and unquestionably as a necessary corollary thereto, the patient may very properly protect that right by objecting to the testimony of any one or all of such incompetent witnesses, when offered in his case.
If that is not true, then the failure to exercise the right as to one, destroys his right as to all others.
It is not so written in the bond, and Shylock has no right legally or morally to shed one drop of blood not authorized by the patient. The statute was enacted for the benefit and. protection of the patient and not for the benefit of the wrongdoer, and being remedial in character should receive a liberal construction at the hands of the court, in favor of those for whom it was designed to protect; and especially should that be true since it is common knowledge that as soon as an accident of the character in question occurs, the injured (strangers in a strange land, knowing no one, and perhaps so injured that they are incapacitated from selecting a doctor) are, as a rule, without their consent, and often without their knowledge, placed in the care and control of physicians of the wrongdoer.
*44If under such conditions, the injured party cannot testify in his own behalf or call his own family physician to testify as to the character and extent of his injuries, without waiving all his rights to object to the testimony of the horde of physicians and nurses who attend him without his consent, employed by the wrongdoer, then a trial under such conditions would be a farce, and the law would be a travesty upon right and justice, for the obvious reason that, if neither he nor his family physician testify as to the character and extent of his injuries, the jury could not ascertain the injuries sustained, nor assess the proper amount of damages therefor.
A trial conducted in such a manner, of course, would inevitably result in a verdict in favor of the defendant, regardless of the extent of the injuries received, and probably he would fare no better if he should call the physicians and nurses furnished him by his adversary, the wrongdoer. From this, it is seen’ that the plaintiff would have but one other alternative, and that would be to testify in his own behalf and call his own physicians, and thereby according to the majority opinion, force himself to waive his rights to object to the testimony of incompetent witnesses.
Can that be the law? The mere statement of the proposition answers the question in the negative.
Third. It should be borne in mind that many persons injured suffer from ailments not due to the injury inflicted, and which are wholly immaterial in a trial regarding the latter, yet where is the physician, not of the plaintiff’s own choosing, who would sacredly protect his rights in that regard, by concealing said ailments while testifying against him upon the witness stand? The answer is, Where! Oh where!
Fourth. It should also be borne in mind that Dr. Elston was not introduced as a witness in the case by the plaintiff, but he was called by the defendant, in plain violation of section 6362, Revised Statutes 1909, *45and simply because counsel for plaintiff, intentionally or through inadvertence, failed to object to that illegal testimony, it is gravely contended and here held by the majority opinion, that because of the commission of that illegal act on the part of defendant, 'without protest from plaintiff, the former thereafter had the legal right to continue the commission of similar illegal acts, namely, the introduction of other incompetent witnesses, Drs. Phelps and Christie.
Moreover, a person might have no objection whatever to a particular physician, as Dr. Elston, testifying against him, but might have serious objection to many others doing so, especially when they are not of his selection, and unknown to him, but chosen by his adversary.
My learned associate, in my opinion, has unwittingly fallen into the error of Mr. Wigmore, whose work on evidence is far better known for boldness of statement than for the soundness of the propositions he advocates.
The only difference between this case and the case of Smart v. Kansas City, 208 Mo. 162, cited in the majority opinion is, that in that case counsel for the city contended, as was stated by Mr. "Wigmore, that the mere bringing of a suit for personal injuries, waives all rights to .object to this class of incompetent witnesses, while here, it is contended that the mere fact that the plaintiff undertook to prove the allegations of his petition, he thereby waived his statutory right to object to this class of disqualified witnesses.
The construction placed upon these sections by the majority opinion utterly abrogates section 6362, in letter and spirit; and I dare say 'that if adhered to, no case can possibly arise wherein the patient plaintiff can avail himself of the right guaranteed to him by said section 6362. This ruling of the court is as complete a repeal of that section of the statute, as if the Legislature had repealed it by an express enactment.
*46This ruling clearly violates the old axiom, “Jus dicere, et non dare.”
The courts of the country are prone to amend or repeal statutes when they seem unjust or unwise in operation. This conduct of the courts is, and. always has been, one of the greatest evils with which society has had to deal; and experience has taught us that there is no way to control the same, and for that reason the courts themselves should be exceedingly cautious in construing statutes and constitutional provisions.
This is a clear case of a distinction without a difference; and if the Smart case was correctly ruled, which as to this point was by the unanimous court, then this one is erroneously ruled, and vice versa.
I, therefore, dissent as to paragraph two of the majority opinion, and as to the result reached therein.