On Application for Rehearing.
CORPMAN, THURMAN and MeCARTY, J.J.Counsel for respondent apply for a rehearing on several distinct grounds. The propositions on which they rely are, in substance, as follows:
(1) The questions propounded to Dr. Critchlow did not indicate the materiality of the answers expected, nor was there an offer of what was intended to be proven.
(2) The defendant might have moved to strike out the voluntary statement of plaintiff as to what Dr. Critchlow told him. Not having done so, it is not entitled to be treated as a waiver of privilege.
(3) There is a vial distinction between the terms “waiver” and “consent” in the statutes pertaining to privilege. Where the word “consent” is used it means express consent, and not consent by implication.
(4) Statutes pertaining to privilege should be strictly construed.
*469(5) The court overlooked an important decision of the United States Supreme Court, binding upon this court and conclusive of the question involved.
(6) The majority opinions are not sustained by the weight of judicial opinion.
(7) The majority opinions are not in harmony with one another, and each is inconsistent with itself.
The foregoing propositions are not stated in the language of counsel, for it is impracticable to do so. They are our conclusions drawn from the argument.
Propositions 1 and 2, above stated, cannot be considered on this application. They are new points entirely, now brought to our attention for the first time notwithstanding they were just as available at the hearing on appeal, and, if relied on, should have been presented at that time. In 8 4 C. J. 627, 628, the rule is stated thus:
“A rehearing will not be granted on the ground that petitioner has failed to argue an important point on the hearing. All points relied upon in support of the case must be presented by the briefs and arguments on appeal, and the practice of reserving certain points to be argued subsequently, in the event of an adverse decision, is condemned by the courts.”
See, also, a recent opinion by this court, Swanson v. Sims, 51 Utah, 485, 170 Pac. 774.
If the rule above quoted were strictly applied, proposition 3, relied on by respondent, might also, with propriety, be precluded from consideration; but, as it goes directly to the question on its merits, we are not disposed in this 9 ease to apply the rule and will therefore give the proposition brief consideration.
Upon the question as to the distinction between the terms “consent” and “waiver” in statutes relating to privilege, counsel have not furnished us with any authority upon the subject supporting such distinction, nor have we been able to find any. On the contrary, it appears from their own argument that some of the statutes relating to privilege render a witness incompetent to testify in such cases and make no provision whatever for a surrender of the privilege either *470by waiver or consent. Notwithstanding this, the courts in those jurisdictions recognize the doctrine of waiver and find it by implication from the conduct of the party. Certainly, if waiver or consent may be implied under statutes which do not expressly provide for either, it ought not to be considered revolutionary to deduce it from a statute like ours which expressly provides for it. We, for convenience, quote again our statute, heretofore quoted in the opinion of Mr. Justice CORFMAN:
"A 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 Mm to prescribe or act for the patient.”
Rev. Stat. Mo. 1909, section 6362, provides as follows:
“The following' persons shall be incompetent to testify: * * * Fifth, a physician or surgeon, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.”
We are unable to comprehend the principle upon which respondent can consistently contend that the Utah statute, which expressly provides for the surrender of the privilege by consent should receive a more strict construction in favor of the privilege than should the statute of Missouri, which, in express terms, renders the testimony of a physician in such eases incompetent without any provision whatever for surrender of the privilege by either waiver or consent. We are of the opinion that an examination of the several statutes of other states, and the decisions of the courts construing them, will disclose no warrant whatever for the distinction relied on by respondent.
Under proposition 4 it is contended that statutes pertaining to privilege should be strictly construed. We believe the statute should receive a reasonable construction. If the construction demanded by respondent were applied to the Missouri statute, which we have quoted, and other 10 *471statutes to which we might refer, the testimony of the physician under these circumstances could not be permitted at all, even if the patient expressly consented. Yet we find the courts of that state have held, under such a statute, that the.privilege may be waived by conduct similar to that relied on by appellant in the present case. Highfill v. Mo. Pac. R. Co., 93 Mo. App. 219. We do not believe that a statute which excludes testimony calculated to disclose the truth in the trial of a case should receive a rigidly strict construction in favor of the exclusion unless the terms of the statute are such as to leave no doubt that such was the intention of the lawmaking body. The statute of Utah provides that the privilege may be surrendered by consent, and we are of the opinion that the consent may be implied from the patient’s conduct.
Under proposition 5 it is contended that the majority of the court, in their opinions, overlooked an important decision of the United States Supreme Court which is binding upon this court and conclusive of the question involved. The case referred to is Arizona & N. M. R. R. Co. v. Clark, 235 U. S. 669, 35 Sup. Ct. 210, 59 L. Ed. 415, L. R. A. 1915C, 834. Without conceding that that case is more binding upon the court in this particular case than would be a decision of the Missouri court, or of the court of any sister state, we nevertheless recognize the great ability and high standing of the United States Supreme Court and regard its opinions as persuasive in the highest degree. These considerations call for a respectful notice of the'decision referred to. The ease arose in the state of Arizona and involves the construction of a statute of that state, R. S. Ariz. 1901, section 2535, subd. 6. The statute reads:
“A physician or surgeon cannot be examined, without the consent of his patient as to any communication made by his patient with reference to any physical or supposed physical disease or any knowledge obtained by personal examination of such patient: Provided, that if a person offer himself as a witness and voluntarily testify with reference to such com*472munication, that is to be deemed a consent to the examination of such physician.”
From the foregoing it will be seen there are two matters upon which the patient’s physician cannot be examined without the patient’s consent: First, matters communicated by the patient to the physician with reference to any supposed physical disease of the patient; and, second, knowledge obtained by the physician by personal examination of the patient. To this rule, however, there is a proviso to the effect that, if the patient offer himself as a witness and voluntarily testify with reference to such communication, that is to be deemed a consent to the examination of the physician.
The patient in the case referred to, being a party plaintiff, was sworn on his own behalf and testified generally as to the injuries, but did not testify to any' communication he had made to his physician so as to bring the case within the proviso which rendered the physician competent. Just how the appellant in that case, under the plain words of the statute and the testimony of the plaintiff, could assume that the plaintiff, who had not testified to any communication made to his physician, had waived his privilege, is beyond our comprehension. The statute mentions one instance in which the patient’s consent may be implied, namely, where he voluntarily testifies with reference to communications to his physician. By construction all others are excluded. Ex-pressio unius, est exelusio alterius. As we read the opinion of the court, this is the principle upon which it decided the case. And notwithstanding the able dissenting opinion of Mr. Justice Hughes, in which one other justice concurs, we have no fault to find with the majority opinion.
Under proposition 6 respondent insists that the majority of the court are not sustained by the weight of judicial opinion. Concerning this proposition but little need be said in addition to what we have said in our former opinions. It is a question upon which different minds may arrive at different conclusions. The fact is demonstrated by the conflicting view of the different courts whose opinions we have cited. Counsel for respondent admit, by inference at least, that some of the courts have gone farther in allowing consent *473or waiver to be implied from conduct than have the majority opinions in the present case. Prom the whole mass of authority considered by us, we have endeavored to ascertain the just and proper rule to be applied to the facts in the ease before us. Upon one proposition we are in full accord, and that is conclusive of the main question. We believe that when a patient, who afterwards becomes a party in court, is sworn as a witness in his own behalf and details the treatment applied by his physician and states what his physician says concerning the injury or disease and its probable effects and consequences, he thereby consents to the physician testifying to the same extent that any other witness might testify if sworn in the case. That is exactly the doctrine affirmed in the case of Highfill v. Mo. Pac. R. Co., supra, rendered under a statute which did not provide for the surrender of the privilege either by waiver or consent. That ease is as nearly in point as one can ordinarily hope to find upon the trial of a legal question. The patient had testified to what his physician did and said concerning his injuries. This was held by the court to be a waiver of his privilege. It was not so held reluctantly by the court, as suggested by respondent’s counsel, but it was so held because it was right and in accord with a former decision of the court. . Counsel for respondent evidently read that opinion with distorted vision, or they never could have been so mistaken, as they evidently were, concerning the meaning of the language used by the court.
This requires a brief explanation. After the patient had testified as above stated, the defendant called plaintiff’s physician, Dr. Wood, and asked him what was the matter with the plaintiff. The question was objected to by plaintiff and the objection was sustained. On appeal the defendant insisted the physician was competent as a witness and assigned as a reason therefor that it was not shown in the evidence that the witness was plaintiff’s physician. The court, in passing upon this question, said:
“We do not think he was a competent witness for the reason assigned, but under a recent decision of this court he was. ’ ’
*474In construing this language of the court, counsel say:
“But it is significant that the judge rendering the decision in the Highfill Case stated he did not 'believe that Dr. Wood was a competent witness under the statute.” (Italicized by respondent.)
There is no such language in the opinion, and no such meaning can he drawn from any language used by the court. We do not charge counsel with intentionally misconstruing the meaning of the court. That is inconceivable. But if counsel had carefully read and considered that opinion, instead of distorting its meaning, they would have been compelled to admit that at least one case had been found where the facts are in every respect analogous in principle to the case at bar and in which the majority opinions of this court are upheld and sustained. We have found no case upon a similar state of facts which holds to the contrary.
We are convinced that our position is sustained by the great weight of authority.
Finally, it is contended under proposition 7 that the majority opinions are not in harmony with one another and that each is inconsistent with itself. We cannot take the time nor use the space necessary to examine counsel’s views concerning our opinions. We do say, however, their criticism in many respects is unfair and misleading, and we are constrained to believe the several majority opinions must have been read by counsel with the same character of vision as that with which they read the opinion in the Highfill Case, to which we have referred. It is needless to say that, unless counsel in argument will read and consider cases and opinions with a clear vision and earnest desire to arrive at their true meaning as free as possible from partisan bias, they will inevitably arrive at an erroneous conclusion.
After giving respondent’s application for a rehearing the most careful consideration of which we are capable, and fully realizing the importance of the question involved, we are still of the opinion that the ease should be remanded 11, 12 for a new trial for the reasons heretofore stated. If there are shades of difference in the reasons *475assigned for the reversal of the judgment in the opinions heretofore handed down, it is sufficient to say, as before stated, we all agree that where a party voluntarily, in a trial of his own cause, states what his physician did and said respecting the injuries which are the subject of litigation, he should not be permitted to close the mouth of the physician when offered as a witness by his adversary solely on the ground of privilege. That is the question here involved, and the only question intended to be determined by the majority of the court. It is needless to say, counsel’s intimation to the contrary notwithstanding, that none of the prevailing opinions hold, or intended to hold, that the waiver of privilege opens the door for immaterial or irrelevant questions. The question as to whether or not the plaintiff was afflicted with syphilis was, in our opinion, wholly immaterial in this particular case. The plaintiff was in the employment of defendant as an able-bodied man at the regular wages usual in such employment. This is substantially admitted in the pleadings. If he was injured by the negligence of defendant, and his permanent recovery rendered more precarious and doubtful by reason of such disease, we know of no authority or legal principle under which appellant could claim immunity either wholly or in part on that account. The questions were therefore immaterial and were objectionable on that ground, but not on the ground of privilege for the reasons heretofore stated.
The application for rehearing is denied.