(dissenting). I disagree with the disposition of this case proposed by Mr. Justice Souris. I would not ordinarily reach decisionally the question upon which the Court of Appeals reversed and remanded for a new trial because it was not appealed to this Court by the defendant. Since Justice Souris writes to remand for a new trial, I feel obligated to express myself on the issue upon which remand was based because it may well arise upon a new trial, if granted.
*303Plaintiff in this malpractice action professionally consulted Dr. Douglas B. Hurd, an osteopathic physician. According to the Court of Appeals’ opinion, plaintiff was “referred” to Dr. Hurd by another osteopath, Dr. Klucka. Dr. Hurd performed surgery, allegedly “assisted” by Dr. Klucka. It is important to note that plaintiff, in the first instance, consulted and engaged Dr. Klucka. It was Dr. Klucka who selected Dr. Hurd and referred his patient to him. Under this statement of facts, as stated by the Court of Appeals, at trial in an action by the patient against the operating osteopath, Dr. Hurd, the patient, as plaintiff, attempted to call Dr. Klucka adversely as an agent of Dr. Hurd. The trial judge held Dr. Klucka was not an agent within the meaning of the adverse party statute. In my view he was right.
The only possible testimony which could have been relied upon by the Court of Appeals to make Dr. Klucka the agent of the defendant for the purpose of the statute is this question asked of Dr. Klucka and his answer thereto:
“Q. Did you have an opportunity to observe Dr. Hurd as he was performing the operation on Mrs. Frazier ?
“A. For the most part I have observed most of the operation, but my vision wasn’t as clear as his. I was merely his assistant in holding the [refractors.”
It is important to note that by this point in the trial, the trial judge had long since ruled as a matter of law that Dr. Klucka could not be called and examined adversely. The following took place when plaintiff called Dr. Klucka to the stand in the ordinary manner:
*304“Mr. Gursten: Incidentally, for tibe record, I am calling Dr. Klucka as an adverse witness under cross-examination, under the statute.
“Mr. Dice: I object to that. He is not a party to this suit.
“The Court: Well I sustain the objection, and. I ask that be stricken. I think that remark was improper. Yon have a witness called by you and as to what transpires hereafter, this was an unfair thing for you to say. This is your witness and you called him. Is this correct?
“Mr. Gursten: Under the statute for cross-examination.
“The Court: Under what statute? He isn’t a party to this case. You can’t call him under the statute for cross-examination.
“Mr. Gursten: I intend to show he was an agent.
“Mr. Dice: I object.
“The Court: This is very improper. If you are going to try to indicate — if you are trying to establish him as an adverse witness, then you may only do so by examination. At this point he is your witness and you are bound by his testimony as of now.”
After excusing the jury an extended colloquy between court and counsel took place. Finally the trial judge ruled:
“[The Court]: What you established throughout the entire testimony is that this Dr. Klucka is a doctor or physician attending your client for many years, and it was Dr. Klucka who suggested, or asked, or retained, or whatever else he did, that Dr. Hurd perform the operation. It is just the reverse of what you say. * * #
“[The Court] : I rule he is not an adverse witness in accordance with your citation.”
The question which elicited the response “I was merely his assistant in holding the [re] tractors” was not directed to the question of agency at *305all. It was concerned with the manner in which the ureter was damaged during the operation and whether Dr. Klucka had observed how this occurred. The quoted part of the reply was a nonresponsive, gratuitous, or volunteered statement. It is fundamental that while the testimony of an agent is admissible as hearing on the relationship of principal and agent, the declaration of an agent alone is not competent to establish the agency. (See 1 Callaghan’s Michigan Digest, Agency, § 13, p 167 for collected cases.)
The foregoing unsupported statement falls far short of the requirement, even to make a submissible jury issue of the question of agency, let alone establishing it so as to enable plaintiff to call the witness adversely and cross-examine him under the statute. There was an insufficient showing that Dr. Klucka was an agent of Dr. Hurd.
I do not read Barnes v. Mitchell, 341 Mich 7, as authority for reversal of the trial judge. In Barnes, supra, a nurse employed by the defendant chiropractor in his clinic negligently overexposed plaintiff to X rays. I find the case as cited by the Court of Appeals inapposite and inapplicable. As earlier indicated in the case at bar, on appeal from the Court of Appeals by plaintiff, no cross-appeal was taken on this point by defendant. However, since Justice Soueis’ opinion affirms the Court of Appeals, I want to make completely clear that I do not approve the ground assigned by the Court of Appeals for reversal of the trial judge.
The second issue considered by the Court of Appeals was of the right of an M.D. called as an expert witness by plaintiff to give opinion evidence as to whether the defendant osteopath complied with the approved surgical procedures and the prescribed standards of osteopathy.
*306The Court of Appeals expressed difficulty in subscribing to Bryant v. Biggs, 331 Mich 64. That Court appears to have accepted Bryant as holding that an M.D. could, under no circumstances, give opinion evidence in a malpractice case against an osteopathic surgeon.
We believe the intermediate court either misconstrued Bryant in its application to the case at bar, or misunderstood the basis upon which the trial judge excluded the M.D.’s opinion evidence. Reference to the trial transcript clearly establishes that the circuit judge did not do so by reason of any requirement in Bryant. Neither did he hold that the proposed opinion evidence did not come within any exception to the Bryant rule. He held that this particular M.D. disqualified himself as a competent witness. We quote the trial transcript:
“Mr. Gursten [plaintiff’s counsel]: We are now confronted with the situation that in the beginning of the case, there was discussion before this bench, which involved the plaintiff’s theory, which was that the plaintiff would prove an exception to the general rule, that general rule being that a practitioner of one school is entitled to be charged* by practitioners of the same school. There was no question about that being the general rule.
“The Gourt: I am familiar with what you are saying. Where the M.D. and the other schools do the same kind of things, the standards are the same, et cetera. * * *
"Mr. Gursten: The statement I want to make for the record, and as it was understood right from the beginning, was that I was going to have a medical surgeon testify that the techniques, methods and details of an oophorectomy for an osteopathic school and the medical school are precisely the same.
*307“The Court: You made no deal with me about anything. You said it came within the exception. You were going to prove it. You have failed to establish it. There was no deal with you. The law is either with you or against you. You have failed to establish that with this witness to this point.
“Mr. Qursten: That is correct.
“The Court: All right.
“Mr. Gursten: The court understands — -
“The Court (interposing): If he doesn’t know the standards, how can he testify it is the same! Unless he is going to change his mind. That is what I cannot understand. He said, T am not familiar with the standards.’ Now, you are going to say he is familiar with the same standards!
“Mr. Gursten: If he were permitted to testify— the question asked him — whether he is familiar with the standards as it relates to oophorectomies only. He was speaking generally before.
“The Court: Well, then, this is most implausible, counsel. Here you say, generally he doesn’t know, but specifically he does know. It just doesn’t make sense. * * *
“Mr. Gursten: Now, I have asked the court for permission to put into the record what I intended to prove by this witness, and — -
“The Court (interposing): You already told me what you intended to prove by this witness and I say you cannot because in view of his answer, he is not able to testify to what you said.
“Mr. Gursten: All right. I have not made the offer in detail.
“The Court: I don’t need it in detail. The offer of proof would be that if he were permitted to testify, you say he would say what!
“Mr. Gursten: He would say that the method and technique of the osteopathic school of medicine and the medical school of medicine in the performance of an oophorectomy are precisely the same.
*308“The Cowl: That would be in direct conflict to the answer given now, therefore, I rule it out.
“Mr. Dice: That is right.
“The Court: This was an -unequivocal answer to a specific question.
“Mr. Cursten: The court understands, of course, without this witness that I can have no case.
“The Court: You are aware of the fact that I have to call these as I see them. The fact that you are unable to prove by this witness what you thought you could, is not the fault of the court, and perhaps, not the fault of yourself. I think you have done a tremendous job of attempting to prove a case, and as far as I am concerned, I compliment you for your hard work in the matter, but I cannot, in view of what I have heard from the stand just now as to the fact that he is not familiar with the standards nor has he been present during any surgeries, to let any testimony come in which would contradict what he said.”
The M.D. emphatically denied any knowledge whatsoever of the procedures of osteopathic surgeons or of osteopathic standards. In view of this unequivocal testimony he effectively disqualified himself as an expert, not by the rule in Bryant, or by any exception thereto, but by the rules of evidence relating to expert testimony and opinion evidence that are as old as our case law.
Understandingly, we must disapprove the following language in the Court of Appeals’ opinion as used in this case:
“In light of the increased similarity between osteopathic and medical procedures and in view of their mergers in some jurisdictions, this Court finds it difficult to subscribe to Bryant.” (Emphasis supplied.) 6 Mich App 317, at p 319.
*309It was, as above noted, no interdiction of Bryant that disqualified the M.D. Bryant’s decisional essence is as follows (pp 70-72):
“It has been repeatedly held by this Court that the implied contract between a patient and surgeon requires the latter to use the degree of diligence and skill ordinarily exercised by the average of the members of the profession in the same locality or in similar localities, with due consideration to the state of the profession at the time. * * *
“In the instant case the alleged failure of defendants to exercise the requisite degree of care and skill in the treatment of plaintiff’s decedent could not be established other than by the testimony of an expert or experts familiar with the ordinary methods and standards of practice of osteopathic practitioners in the community or in similar communities. Practitioners of other schools of treatment, no matter how well qualified by study and experience in their own methods and standards but lacking the requisite knowledge of the specific matter in question, could not competently express opinions.” (Emphasis supplied.)
Nowhere do we find in Bryant an unequivocal holding that a properly qualified M.D. could not testify to the matters sought to be proved by plaintiff. It was not Dr. Youngstrom’s M.D. degree that disqualified him, but his emphatically stated lack of any knowledge of osteopathic standards and procedure.
My specific difference with Justice Soubis is twofold. First, I do not believe we should in this case clecisionally expand Bryant to encompass the language used by the supreme court of Washington in Swanson v. Hood, 99 Wash 506 (170 P 135). We prefer not to enunciate a principle of law of broad application outside a factual context that will support it. For our purpose in this case we should expressly disapprove the language in the Court of Appeals’ *310opinion that the holding in Bryant “effectively defeats plaintiff’s claim.” We do so disapprove it.
Second, Justice Soubis affirms the order of remand. X disagree. The order of remand of the Court of Appeals was based on an error of law and we should not compound it by affirming the remand for a new trial.
This lawsuit involved 2 questions. One was a question of agency; the other a question of the qualifications of an expert witness. The trial judge ruled on them both in the factual setting that was before him on the record. He should be affirmed or reversed on those 2 rulings. In my view he was right in both. Under our OCR 1963, 865.1(7), the order of the Court of Appeals reversing the trial court is vacated. The directed verdict and judgment for the defendant entered by the trial judge should be affirmed. Costs can be taxed by the defendant appellee.
Dethmebs, C. J., concurred with 0’Haba, J.We assume the word “charged” is an. error in transcription.