The following opinion was filed June 23, 1920:
Eschweiler, J.It is conceded in this case that there.is no evidence in the record sufficient to support a verdict for the plaintiff upon the accident insurance policy in suit except and unless the testimony of physicians who attended the deceased subsequent to November 14th as to what was disclosed by the surgical operations performed by them, and including statements made by him to them concerning the alleged twisting or injury sustained in the moving of the ice-box, was erroneously stricken out. The trial court excluded it under the following portion of sec. 4075, Stats.:
“No person duly authorized to practice physic or surgery shall be permitted to disclose any information which he may have acquired in attending any patient in a 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.”
Appellant contends that the defendant should be prevented from asserting any right under such statutory provision, first, because of want of proper objection either to the competency of such physicians to testify as witnesses or to their testimony as it was being received; and secondly, because it must be considered that the exclusioñ of such testimony under said sec. 4075, being a privilege accorded the patient, was one that might be waived, and under the situation in this case was so waived.
We do not deem it necessary to recite in detail the manner and form in which the offered testimony on the points here in issue was objected to by the defendant from time to time as the same was being offered and was at first received. Objections were interposed as to the competency of the evidence on the ground of privilege, and also in a form in*354dicating that some of such objections were based upon the ground that the statements by the deceased as to the alleged accident on November 14th, made some considerable time thereafter, were not parts of the res gestes. That the objections were intended to be to the incompetency of the witnesses to testify rather than to the incompetency of their testimony, was perhaps not so precisely or concretely stated during the earlier stages of the trial as might have been advisable, but it is rendered immaterial in the disposition of this case for the reason that court and counsel were apprised that reliance was being expressly placed by defendant upon the section of the statute above quoted.
Upon subsequent motions made by defendant and the action of the trial court, it is clear that the questions now considered were squarely presented to the trial court, so that the first objection raised by appellant on this appeal as to the form of defendant’s objections to this testimony must be overruled.
Although sec. 4075, Stats., supra, makes no exception in terms as to the application of the peremptory language of the statute excluding the testimony of physicians or surgeons as to information received by them professionally from a patient, yet it is also well established that such statutory provision, being intended as a protection to the patient rather than a mere inhibition to the physician, is a protection or privilege that may be waived by him for whose benefit it is deemed to have been enacted, and therefore such testimony may, notwithstanding the statute, be admitted, it satisfactorily appearing that the patient’s privilege has been waived. McGinty v. Brotherhood of Railway Trainmen, 166 Wis. 83, 89, 164 N. W. 249; Will of Hunt, 122 Wis. 460, 469, 100 N. W. 874.
There was no express waiver by the patient in this instance, and it cannot be waived by the administrators, executors, or personal representatives of the deceased nor by any person standing in the position towards deceased such as *355does tlie plaintiff beneficiary under the policy in suit. Casson v. Schoenfeld, 166 Wis. 401, 413, 166 N. W. 23.
It is urged, however, and largely from the standpoint of the probable injustice that will otherwise result in this instance as well as in similar situations, that under the facts in this case it was intended by the insured that there should be a waiver of such privilege from his taking out such an accident policy, in that the very nature of the contract necessarily implies that it was anticipated that in case of accident the testimony of attending physicians or surgeons would be- required in order to establish a right to recover either for the insured himself in case of an injury not resulting in his death, or for the designated beneficiary in case such injury resulted in death.
It is further urged that the contract of insurance, providing as it does on its face for the furnishing by the insured or his beneficiary, respectively, of satisfactory proofs of injury or death, also indicates an intention on the part of the insured that the statutory exclusion of such material testimony as was being offered in this case was to be lifted and waived by the insured. Plaintiff also insists that in view of the conditions inserted for defendant’s benefit in this contract, namely, those requiring statutory proofs of death, necessarily requiring the statement or evidence of physicians, and the further provision for the examination of the body of the insured under the clauses set forth in the statement of facts above, should prevent it from now asserting any benefits from a privilege belonging to the insured and not to the defendant or the witnesses themselves.
That such a statute as well as others that the state has adopted, on the ground of public policy, for the exclusion of testimony involving information acquired in such confidential relationships as that between physician and patient, lawyer and client, minister and penitent, undoubtedly does in particular instances result in the defeat of meritorious and just claims, may well malee us hesitate but cannot per*356mit us to do otherwise than uphold the law as it has been written. It must not be overlooked that such a privilege is somewhat of a double-edged sword, in that such patient could not waive his privilege so as to have admitted testimony elicited from a physician that was favorable to the patient’s side of any controversy and at the same time insist upon the statute for the exclusion of further testimony on cross-examination or otherwise which might prove harmful to his cause. If the bars are lowered for and by him, they must be kept lowered for the opposite party.
Were such statute only for the benefit of parties situated towards the patient as is the defendant in this case, then there would be much force to the argument that such contract provisions should be held to be a waiver by it of such privilege. The possibility, however, of need of such testimony on any action on such an insurance policy does not justify, in our judgment, a conclusion that the patient himself, in the making of such a contract, thereby impliedly writes into.it a waiver on his part of such statutory privilege, which privilege, if thus waived by him, would necessarily be waived as against him if alive, or against his memory or reputation if dead.
The trial court was therefore right in ruling as he did that the information obtained by the medical witnesses while attending, prescribing for, and operating upon the patient was excluded and not permitted to be received in evidence by force of sec. 4075, supra.
Much of the apparent hardship resulting in this case from a dismissal of- plaintiff’s cause of action, however, necessarily results from the application of another well established rule of evidence not dependent upon the statute.
The testimony of the physicians so excluded in this case on all the other points on .which it was offered would have been of no avail and weight unless there could have been connected with such testimony the declarations of the deceased, made some days subsequent to the accident to these same physicians, that he did injure himself by the moving *357of the ice-box. Such declarations were clearly no part of the res gestee, were hearsay and inadmissible. Hall v. American M. A. Asso. 86 Wis. 518, 525, 57 N. W. 366; Brahmsteadt v. Mystic Workers of the World, 152 Wis. 580, 582, 140 N. W. 354; Andrews v. U. S. C. Co. 154 Wis. 82, 87, 142 N. W. 487; Ætna L. Ins. Co. v. Ryan, 255 Fed. 483; Globe Acc. Ins. Co. v. Gerisch, 163 Ill. 625, 627, 45 N. E. 563; Budde v. Nat. Trav. Ben. Asso. 184 Iowa, 1219, 169 N. W. 766; Jones, Ev. (2d ed) § 345; 1 Corp. Jur. 500.
Recitals of past events made by an interested person are no more admissible because made to physicians or surgeons, even when necessarily so made for the purpose of proper treatment by them, than if made to other persons. Keller v. Gilman, 93 Wis. 9, 11, 66 N. W. 800; Kath v. Wis Cent. R. Co. 121 Wis. 503, 511, 99 N. W. 217; Peoria C. Co. v. Industrial Board, 284 Ill. 90, 93, 119 N. E. 996; Maryland C. Co. v. McCallum, 200 Ala. 154, 75 South. 902; 1 Corp. Jur. 500.
By the Court. — Judgment affirmed.
The following opinion was filed July 15, 1920: