If I understand the views of my Associates, we all agree that the defendant is liable for the negligence which resulted in the plaintiff’s injury. We disagree as to the ruling of the trial court sustaining plaintiff’s objections to the questions propounded to defendant’s witness Dr. Critchlow. I concur in the conclusion reached by Mr. Justice CORFMAN and Mr. Justice McCARTY that the trial court erred in sustaining the objections.
As I read the opinion of Mr. Justice McCARTY, I concur in his views both as to the conclusions reached and the reasons given therefor. I concur with Mr. Justice CORF-MAN to the extent that the plaintiff waived his privilege when he voluntarily testified concerning the conduct, statements, and opinions of Dr. Critchlow. This, I believe, is the only ground upon which it can be claimed that the plaintiff waived his privilege. But upon this ground, both on reason and authority, I am of the opinion he waived the privilege, and that therefore the court erred in not permitting Dr. Critchlow to answer the questions. The first, second, fourth, and fifth questions in particular were certainly proper. The third was answered. The sixth, seventh, and eighth may have been objectionable on other grounds, but not on the grounds of privilege, for that was waived. These questions *453appear in the opinion of Mr. Justice CORPMAN and need not be repeated here.
The plaintiff, no donbt, was seriously injured. He brought his action for damages in the sum of $3,000. The extent of his damages was, in the view of this court, the only substantial ground of controversy. Plaintiff at the trial took the witness stand in his own behalf. In his examination in chief he testified voluntarily of his relations with Dr. Critchlow, which was clearly that of patient and physician. Dr. Critch-low was in charge of his case at the hospital when he was under treatment. Plaintiff testified as to the treatment administered by the doctor, what the doctor said respecting the injury, certain consequences likely to follow, and the necesi-sity for further treatment. A considerable portion of this testimony is quoted literally in the opinion of Mr. Justice McCARTY. It tended to show that in the opinion of Dr. Critchlow the injury was very serious. By this means the plaintiff succeeded in getting before the jury his version of Dr. Critchlow’s opinion and diagnosis without putting Dr. Critchlow on the stand. It was right and proper for him to do this if he chose, especially if no objections were raised, and probably would have been proper even as against objection; but the unfair-and unjust procedure occurred after-wards when the doctor himself was called as a witness for the defendant. At this point the plaintiff invoked his privilege. Plaintiff was permitted to exploit the opinions, treatment, suggestions, and diagnosis of the doctor; but, when it came to obtaining the information first hand from the doctor himself,, objection was raised, the testimony was excluded, and in the opinion of the writer the defendant was thereby deprived of a substantial right — a right that is usually accorded to every litigant in the trial of a case.
If the plaintiff had testified from his own knowledge concerning his injuries, the operations he had undergone, the pain and suffering he endured, the weakness and disability resulting, his incapacity for business, and the permanence of the injury without injecting into his testimony the statements, suggestions, and opinions of Dr. Critchlow, it could *454not, in my judgment, be successfully contended that be bad waived his privilege. Neither can it be contended, in my opinion, that he waived it when he put Dr. Scott on the stand and examined him concerning his injuries. There are authorities, however, that go to the extent that even that would constitute a waiver; but I am not disposed to follow them.
The plaintiff undoubtedly had the right to present his case, and present it fully. He could call in any physician he might select and examine him to the fullest extent permissible in a court of justice, either from the standpoint of actual knowledge or expert opinion; but he had no right to inject into his testimony the conduct, statements, opinions, and diagnoses of other physicians concerning his injury, and then exclude the testimony of such physicians on the grounds of privilege.
The plaintiff voluntarily told the court and jury what the doctor found as to his injuries; but the doctor himself, when asked what he found, was not permitted to answer. The plaintiff voluntarily told the court and jury the condition of the bones of his leg as stated to him by Dr. Critehlow; bq/t, when the doctor was asked as to the condition of the bones, he was not permitted to answer. The plaintiff voluntarily testified as to what the doctor saw respecting the condition of the bones of his leg; but the doctor was not even permitted to tell what he saw, much less express an opinion concerning it. The whole proceeding, in the opinion of the writer, to say the least, was a perversion of justice, if not an absolute travesty. It was anything but even-handed justice. It was not a square deal, and, as stated, in effect, by many courts, whose opinions have already been cited by my Associates, it was using as a sword against his adversary the privilege which was merely intended for his own protection. If this is the meaning and extent of the statute under which the privilege is claimed, the sooner the statute is repealed the better it will be for the administration of justice. But the very fact that such an interpretation of the statute may, *455as in this case, lead to rank injustice, is sufficient in itself to cause us to doubt the correctness of the interpretation.
It is inconceivable that the Legislature could have intended that a party litigant might be permitted to place before a court or jury the opinions, diagnoses, and treatment of his physician to the extent that the party is benefited thereby, and then by invoicing his privilege close the mouth of the physician and prevent him from placing before the same court or jury his version of the same transaction or matter in controversy — prevent him from giving his version of his own statements and opinions which might have been distorted and exaggerated by the party for his own advantage. We do not say that such was done in the case at bar; we are speaking against a principle which tends to admit of, and affords an opportunity for, such intolerable wrong in the trial of a case.
My position is that the plaintiff, for the reasons above stated, waived the privilege given him by the statute; that he waived it for all purposes as against the witness Critchlow. He waived it, not alone to the extent of permitting the witness to contradict or qualify the testimony given by himself concerning the witness, but waived it to the extent of permitting the defendant to use the witness for any and all purposes for which any witness may legitimately be used, unhampered by any question of privilege. These views, I believe, are sustained by the preponderance of judicial opinion. I have not taken the trouble to count the eases to determine the question of numerical preponderance; but I mean the weight of opinion founded upon reason, common sense, and the practical administration of justice — quality as distinguished from quantity — applying the same rule that we would apply in determining a question of fact, not necessarily by the number of witnesses testifying for or against the proposition, but the reasonableness of their testimony and the probability of its being true.
This identical question has not heretofore been determined by this court. It has, however, frequently been passed upon by courts in other jurisdictions. The eases supporting the *456exact point in question, cited by Mr. Justice CORPMAN, which we have examined, and some others in addition thereto, are as follows: Highfill v. Mo. Pac. R. Co., 93 Mo. App. 219; Oliver v. Aylor, 173 Mo. App. 323, 158 S. W. 733; Treanor v. Manhattan Ry. Co., 16 N. Y. Supp. 536; Marx v. Manhattan Ry. Co., 56 Hun. 575, 10 N. Y. Supp. 159; Epstein v. Penn. R. Co., 250 Mo. 1, 156 S. W. 699, 48 L. R. A. (N. S.) 394, Ann. Cas. 1915A, 423; Rauh v. Deutscher Verein, 29 App. Div. 483, 51 N. Y. Supp. 985; Lane v. Boicourt, 128 Ind. 420, 27 N. E. 1111, 25 Am. St. Rep. 422; Webb v. Met. St. Ry. Co., 89 Mo. App. 604. Several other cases cited by Mr. Justice CORPMAN, not included in the above list, have more or less bearing to the same effect and are worthy of consideration in this connection.
The cases cited by respondent with one single exception do not controvert the rule sustained by the cases above cited. Ind. Rapid Transit Co. v. Hall, 165 Ind. 557, 76 N. E. 242, seems to be in point against the rule, and that is the only one as we read the eases. A careful reading of that case will disclose that it was not thoroughly considered — in fact, no reasons are given why the case of Lane v. Boicourt, supra, in which a- strong opinion was rendered, should be overruled.
In view of this fact, the writer feels justified in assuming that the views herein expressed are sustained, not only by the better considered opinions of the courts that have passed upon this particular question, but by the numerical preponderance as well.
The cases cited by respondent, with the single exception noted, distinguish themselves from the case at bar. They are as follows: Ind. Rapid Transit Co. v. Hall, supra, which we have considered; McAllister v. St. Paul City Ry. Co., 105 Minn. 1, 116 N. W. 917; Hilary v. Minneapolis St. R. R. Co., 104 Minn. 432, 116 N. W. 933; Cohodes v. Co., 149 Wis. 308, 135 N. W. 879; Green v. Town, etc., 113 Wis. 508, 89 N. W. 520; Noelle v. Hoquiam Lbr. & Shingle Co., 47 Wash. 519, 92 Pac. 372; May v. N. P. Ry. Co., 32 Mont. 522, 81 Pac. 328, 70 L. R. A. 111, 4 Ann. Cas. 605; McConnell v. City of Osage, 80 Iowa. 293, 45 N. W. 558. 8 L. R. A. 778.
*457It is not necessary to point out the distinguishing features of these cases, which would only tend to unduly lengthen this opinion. It is already extended beyond the limits intended, but the question is important, and under the circumstances the opinion of the writer is perhaps necessary to a decision of the question involved. I would be untrue to myself and unfair to my Associates who disagree with me if I assumed that they are entirely without justification for their divergent-views. Nearly every question that becomes a matter of controversy in the tribunals of the country can find support on both sides of the question. I am therefore not disposed to criticize the views of my Associates who disagree with me, much as I would like them to view the case as I view it and join in making our decision unanimous. The rule here invoked is not unfair. It is not harsh or oppressive. It does not arbitrarily invade the sanctity of the privilege in question. The patient is a party litigant and to him the privilege belongs; it is under his complete control. He cannot be deprived of it by the conduct of his adversary. If he loses it, his own conduct is responsible.
For the reasons above stated, and for those only, with my present light on the question, I am of the opinion that the court erred in not permitting the questions propounded to the witness Critchlow to be answered, especially the questions particularly specified by me in the beginning of these remarks. I am also of the opinion that the error was prejudicial and that the judgment of the trial court for that reason should be reversed.