concurring.
I fully concur in the majority opinion and write this addendum only because the carefully considered dissent by Judge Pritchard deserves a response.
The dissent says the dispositive question is whether the restriction on the use of the blood test may be waived by plaintiff Thomas E. Girdner, and it observes that “this matter is not touched upon in the majority opinion.” That omission in the majority opinion is explained by the fact that respondent made no such argument. In fact, at oral argument attorney for respondents expressly disclaimed any reliance upon this theory of waiver. Nonetheless, the dissent quite properly may raise the issue, because the respondent trial judge should be sustained if his action can be justified on any theory.
Turning to the merits of the argument advanced, the dissent asserts that “[i]t is for his [Thomas E. Girdner] protection, and others similarly situated, that the Legislature must be held to have intended to protect . ” That certainly may have been the underlying intention of the Legislature, but that is far from necessarily so. Other and quite different motivation may have led to the restriction in question.
As set forth in footnote 1 of the majority opinion, a number of other states have similar statutes, some of which disclose an underlying philosophy diverse and even contradictory to that of other states. Thus, the Nevada statute makes the findings open to the world; Colorado makes the findings available “to any interested party” and that *712seems also the philosophy of the North Dakota statute; but Illinois, Minnesota, New York, Idaho and New Mexico seem to go on an opposite policy of forbidding use of the findings by any party in any litigation, criminal or civil. In light of this diversity of policies, no one can say with entire confidence just what policy was intended by the Missouri Legislature. That choice would necessarily be reduced to a matter of speculation.
Analysis of the statutes of other states also yields another point of interest. That study reveals a philosophy by at least some legislatures to treat all parties in interest with an even hand, either giving access to the test results to all parties or forbidding access to any party. This approach has an attractive feature of fairness, as opposed to according a one-sided advantage to the family of the deceased. If the Missouri statute were to be interpreted as having the opposite intention of granting a privilege solely available to the family of the deceased, then the family would waive the privilege if the test results were favorable to them but would stand on the privilege if the results were otherwise. An interpretation permitting such a result does not commend itself for adoption.
The safest course and indeed the only course open to this court is to give strict effect to the language of the statute which says that the results of the test “shall be used only for statistical purposes.”