inference is negatived by the testimony of | patient and physician is once conceded, about the physician disclosing to the court just everything which has any relation whatever what the facts were under which the infor- to the accident or injury in question comes mation was obtained, then it may be that the within the statute. We shall not attempt to inference is entirely overcome. Quite true, cite nor refer to a large number of cases, but the testimony of the physician may not, in shall refer the reader to a few only as fair all cases and under all circumstances, be con- types. The following are cases which seem clusive, and the court may still be justified to favor the doctrine last above stated: Batin holding the information necessary, the tis v. Railway Co., 124 Iowa, 623, 100 N. W. statement of the physician to the contrary 543; Keist v. C. G. Ry. Co., 110 Iowa, 32, 81 notwithstanding. If the rule were otherwise, N. W. 181; McRae v. Erickson, 1 Cal. App. 'the physician would have it in his power to 326, 82 Pac. 209; Pennsylvania Co. v. Marion, either enforce the statute with respect to all 123 Ind. 415, 23 N. E. 973, 7 L. R. A. 687, 18 information, or to ignore it with respect to Am. St. Rep. 330. all. This would be unreasonable. The testimony of the physician from which the court may determine whether the information was or was not necessary to enable the physician to act is always important, and, we think, should receive fair and full consideration; but in determining its weight and effect it should be considered in the light of all the facts and the surrounding circumstances. In some cases and under some circumstances the statement or information obtained from the patient may be self-explanatory, and thus a mere inspection of it, if written, or merely having it stated, if oral, may be sufficient to enable the court to determine whether the information is privileged or not. In other cases the doctor's statement as to whether the information was necessary or not may be conclusive upon the subject. Where therefore evidence of this character has been either admitted or excluded by the trial court, and its rulings are attacked and presented to the appellate court for review, the reviewing court must, from the record presented, of necessity, determine two things: (1) Did the trial court err in either admitting or excluding the evidence? And (2) if it did, is the error prejudicial? The first question now to be determined therefore is: Does the statement, or any part thereof, made by appellant to Dr. Van Cott, come within the statute as privileged? A mere cursory inspection of the statement discloses that it contains nothing except a brief narrative of what occurred at a certain time and place. We think it is also apparent that, at least upon its face, nothing is disclosed of a confidential nature, nor of any fact or facts, which, to the ordinary mind at least, would seem necessary for a physician to know in order to prescribe for or treat the person making the statement for the injury disclosed thereby. In fact, no injury is even referred to in the statement in question; but whether one existed is left entirely to inference. In addition to this, Dr. Van Cott testified that he obtained no information of the character which is protected by the statute. If this be true and there is nothing in the record showing the contrary-the statement in question is not privileged. We are aware that there are cases which seem to go to the ex It is only fair to state that, in all of the foregoing cases, it was either affirmatively made to appear that the physician regarded the particular information in question necessary, or that such fact arose as an inference deduced from other facts. Upon the other hand, there is also a large number of cases from very able courts which take, what seems to us, a more rational view. As types of that class, we cite the following: Green v. Metropolitan St. Ry. Co., 171 N. Y. 201, 63 N. E. 958, 89 Am. St. Rep. 807; Griffiths v. Same, 171 N. Y. 106. 63 N. E. 808; Green v. Terminal Ry. Ass'n, etc., 211 Mo. 18, 109 S. W. 715. In the case of Green v. Metropolitan St. Ry. Co., supra, a statement in its effect just like the one now under consideration was the subject of review. After stating the manifest purpose of the statute, Mr. Justice Gray, at page 204 of 171 N. Y., at page 959 of 63 N. E. (89 Am. St. Rep. 807), says: "Surely it could not have been intended that any truthful version of a narrative of the events leading to an accidental injury should be excluded, and that was all this question called for, as it had come from the sufferer's lips, and when fresh in his recollection. It is rather more consonant with the requirements of justice that no witness should be prevented from giving such evidence." From the doctor's testimony in the case referred to, it the information received by him necessary to was left very doubtful whether he deemed enable him to prescribe for the injured person. There is a dissenting opinion based, however, upon the fact that the information was deemed necessary by the doctor, and for that reason it is claimed that the case is clearly distinguishable from the case of Griffiths v. Metropolitan St. Ry. Co., supra, in which the doctor testified, as in this case, namely, that the information was not neces sary. The case of Green v. Terminal Railway Ass'n, etc., supra, is a very recent case, decided in 1908. In that case about all the important cases upon this question are examined and reviewed. In our judgment the true test is applied in that case. The court, in referring to the statute, emphasizes the fact that it is manifest from the statute itself that not all information that a physi but only such as is necessary to enable the, going so fast that it threw me to the physician to discharge his full professional ground," likewise contains nothing except a duty to his patient; that the patient may narrative of what was a most natural ocdisclose many matters to the doctor that in currence. It may be said that, under some no way are of assistance to the doctor in circumstances, it might be of some assistdischarging his professional duties, and, ance to the physician to explain certain where such is the case, such matters are symptoms if he were told whether the innot privileged because not within the provi- jured person fell against some object, or sions of the statute. The Missouri Supreme whether he was precipitated and fell a conCourt, however, in effect holds that, to some siderable distance or with much or little extent at least, the question whether par- force, and matters of that kind; but there ticular information under peculiar circum- certainly is nothing of this character disstances was necessary for the doctor to know closed by appellant in the foregoing stateor not is a judicial question, and that the ments. All that he says is that he fell to fact that it may not be easy of application the ground. It certainly cannot be claimed in all cases in no way affects the duty of that in the sentence succeeding the forethe court to determine when it shall be ap- going there is anything that can possibly be plied and when not in accordance with the privileged. To so contend would be to make manifest intent and purpose of the statute a farce of the statute. Coming now to the and in furtherance of justice. If therefore, last sentence, namely, "When I jumped I in order to enable the doctor to prescribe fell on my left side, and could not get home for the injured patient, it becomes necessary without assistance." Does appellant here for the doctor to know how an accident oc- refer to any injury except by inference? curred, and he obtains the information while Where was he injured, if at all? From this the relation contemplated by the statute ex- meager narrative of what appellant did and ists, the information is privileged, although what happened to him at a particular time, it may be "a narrative of the events lead- can it reasonably be contended that a physiing to an accidental injury." This, it seems cian could have obtained information which to us, should be the test. If the informa- would assist him to intelligently treat aption is reduced to writing, it may upon its pellant for some injury or injuries he might face show whether it was or was not neces- have sustained? We cannot yield assent to sary, and the court may declare it either such a contention. To hold that such inforwithin or without the statute. Again, the mation, obtained under such circumstances, trial court may be justified in accepting the is privileged, would, in our judgment, make doctor's statements, and from them deter- the privilege absolute, and not conditional, mine whether the information was or was as is contemplated by the statute. not necessary, and again declare the result would result in declaring the statute to as before. Upon the other hand, the court mean one thing, when its plain language may, from all the circumstances, determine clearly means something else. This we have that the information was necessary, not- no authority to do. In our opinion therewithstanding the doctor's statements to the fore, and in view of the circumstances discontrary, and thus exclude the information closed by the record before us, the stateas privileged. Neither the trial court nor ment in question is not privileged, and the this court therefore should arbitrarily either court committed no error in admitting it in admit or exclude all information which may evidence. relate to the accident or injury; but, in The information that was obtained from determining whether specific information appellant by Drs. Landenberger and Van should be excluded or admitted, the purpose Cott on the following morning, however, of the statute should be kept in mind, and stands on a different footing. Appellant fulif, in the judgment of the court, the par- ly submitted himself into the hands of these ticular information in question comes with- two doctors, and permitted them to adminisin the statute, it should be excluded, and, if ter an anæsthetic so that they might make a otherwise, it should be admitted in evidence. more thorough examination of his person. Let us analyze the statement made by ap. The doctors certainly made the examination pellant and see whether there is anything in for the purpose of obtaining information to it that, by reason of the privilege contem- enable them to treat appellant's injury. That plated by the statute, the doctor was not au- they might do so intelligently they desired thorized to disclose. There certainly is noth- to learn its full scope and effect, if possible. ing in the first sentence commencing with, They were thus permitted to make the ex"I was going home," etc., which could pos- amination for that purpose. That they also sibly be tortured into a meaning which had another purpose in mind, namely, to would bring it within the privilege. What learn the scope and effect of the injury for information is there in that sentence which would be of assistance to even the dullest intellect in prescribing for a person who "got off" a car while it "kept on going"? The sentence which follows, in which appel This the benefit of the respondent, in no way changed their relation to the appellant. No doubt respondent, through its agents, had a right to obtain from appellant all the information with respect to the cause and extent them; but in obtaining such information respondent had to exercise some discretion in selecting its agents. If it selected two skilled physicians and surgeons, and thus led appellant to believe or assume that those physicians sought information from him with a view of prescribing for his injuries, then such information is privileged under the statute, regardless of the fact that the doctors sought the information for the further purpose of disclosing it in a court of justice in case appellant brought an action for damages against the respondent. If the doctors desired to obtain information for the latter purpose only, they should have explained the matter fully to appellant, and should have told him that they sought the information for the purpose of imparting it to respondent, and not for the purpose of aiding him. If, under the latter circumstances, the injured person permits an examination, or imparts information, no confidence is abused, and no statute is invaded, and hence he may not be heard to complain; but persons who are injured by accidents of any kind should be treated fairly by the skilled physicians who seek information of the character protected by the statute. The statute is plain, and its purpose is just and humane. It seems to us that it is the duty of the courts to give the statute full scope and effect; but, in doing so, to prevent, if possible, either party from gaining an advantage contrary to the true spirit and intent of the statute. We are clearly of the opinion that the court erred in permitting Drs. Landenberger and Van Cott to testify to what the appetant may have told them, and to what they discovered in making the examination of his person on the morning after the accident. It is contended by respondent, however, that, although we should determine that the court did err in admitting the testimony of the two doctors just referred to, such error would not be fatal to the judgment for the reason that the evidence which was admitted at most related to an issue which was made immaterial, because the appellant had not established negligence on the part of respondent, and that the jury, by returning a general verdict for respondent, necessarily so found. The general rule undoubtedly is to the effect that, when the court admits incompetent evidence upon a material issue, all the party against whom such evidence is admitted is required to do is to produce the record disclosing such to be the fact and his objection and exception, and from this the legal inference arises that the error is prejudicial to such party's rights, and hence constitutes reversible error. The opposite party may, however, show from the record, if he can, that the error is nevertheless not fatal to the judgment. The question then arises, which, in the nature of things, must be a judicial one, whether, in view of the record which is presented to the reviewing court, the judgment, notwithstanding such error, should stand. In McPhail v. Buell, 87 Cal. 115, 25 Pac. 266, it is, in substance, held that error in admitting evidence will not be sufficient to reverse the judgment, if it is made to appear from the record that appellant in no event was entitled to recover. In Clavey v. Lord, 87 Cal. 413, 25 Pac. 493, it is held that the admission of incompetent evidence against a plaintiff which relates to an issue, which is made immaterial by reason that another issue which is vital to the right of recovery is found in defendant's favor, will not be sufficient to reverse a judgment. In Re Kennedy, 104 Cal. 429, 38 Pac. 93, the rule is stated in the syllabus as follows: "Error in the admission of evidence is ground for reversal, unless the appellate court can see from the record that appellant was not injured." In 2 Spelling, New Tr. & App. Pro. p. 1484, the author says: "Whether an error has prejudiced a party is a judicial question, to be determined in each case according to the character of the error and circumstances shown by the record. Being such, and the question of whether or not it has been prejudicial in its consequences being uniformly decided by reference to the record, it is difficult to see any place for the operation of what is called a 'presumption of prejudice.' As a matter of practice, cases are not reversed for error, unless, and until, from its character, and in view of the whole case presented by the record, there is at least a possibility of injury." This, we think, is what is meant by section 3285, Comp. Laws 1907, which provides that "no exception shall be regarded unless the decision excepted to is material and prejudicial to the substantial rights of the party excepting." Nor can it change the rule because, as in this case, all the evidence is not certified to this court. A party may present only so much of the proceedings had in the trial court as will show and illustrate the ruling and consequent error of which he complains. If in doing so the record as presented by the complaining party only shows that a material error has been committed, and the opposite party does not supplement appellant's record so as to make it appear that the alleged error is not prejudicial, the appellant must prevail, and the judgment must be reversed. Where, however, the record as presented by the appellant, whether it contains all or only a part of the evidence and proceedings, upon its face shows that the error complained of is in fact not prejudicial, and that no other judgment is permissible in view of the whole record as presented, then the judgment must stand. This must be the result regardless of whether the prevailing party brings up that portion of the record which discloses the fact that the error is not fatal to the judgment, or whether it is made to appear from the record as prepared by the appellant. Such a rule reflects justice not only upon the litigant who is en Still rendered in his favor in substantial compli- | nary speed in approaching that street. ance with the forms of law and is meritori- there is absolutely nothing to indicate that ous, but it also reflects justice upon the gen- the conductor was not going to stop the car eral public, which must, in a large measure when the usual stopping place at that point at least, contribute to the expense of main- was reached. What right had a jury to infer taining courts. that the north side of the street, rather Applying the foregoing rules to this case, than the south side, was the usual place for we cannot see wherein appellant can justly stopping? But appellant says he assumed complain. His testimony upon which he re- this. How would this impose the duty to lies to establish respondent's failure to dis- stop upon respondent? The fact remains that, charge its duty is in the record. If from this so far as the evidence discloses, neither the testimony it is not made to appear that the conductor nor the motorman knew appellant respondent was guilty of negligence or in wanted to alight on the north side of the any way derelict in discharging any duty street. Merely to tell the conductor that apwhich it owed to appellant at the time of pellant wanted to alight at Ninth South street and under the circumstances the accident might mean either side, and, so far as imoccurred, then the appellant cannot recover, posing any legal duty upon the conductor upon the ground that he has failed to make was concerned, it meant the usual stopping a case; and if he has failed to make a case place at that point. Appellant's right to reagainst the respondent, then the question of cover is grounded upon negligence, and, unwhether the appellant was injured, or the less negligence can be inferred from the acts extent thereof, is immaterial. That the jury and conduct of respondent's employés who were fully justified in finding against appel- were in charge of the car in question, appellant upon the issue of respondent's negli- lant cannot recover. Surely, so far as the gence, to our minds, is not left in doubt evidence discloses, the motorman did nothwhen reference is had to appellant's own ing of which appellant could complain. Nothstatements made under oath when on the ing is made to appear that the motorman stand as a witness in his own behalf. He, knew that appellant was standing on the in substance, testified: That on the 13th step, when, as appellant says, the car was day of April, during the daytime, he was a "quick to start," after it had slackened speed. passenger on one of respondent's street cars Nor is there any fact shown from which it going south; that he told the conductor when may be inferred even that the conductor he paid his fare that he wanted to get off knew; but, if this were inferred, nothing is at Ninth South street; that on approaching made to appear that the conductor could the crossing of said street the conductor have prevented the car from crossing to the "kind of slackened the car"; that the con- other side of the street. Can negligence be ductor did not give any signals "that I know inferred from the fact that the car, on apof"; that before the speed was slackened the proaching the crossing, slackened speed? Is car was running at ordinary speed; that in it negligence to do this when a car is apnearing the crossing the car slowed down, proaching a street crossing on which persons and "it wasn't running very fast," and he may be passing to and fro, although the car went from the inside of the car and stood is not scheduled to stop at that point? Again, on the rear platform, and from there stepped is it negligence, after slackening speed in aponto the car step. "Q. Then what happened proaching a crossing, to again increase the while you were standing on the step? A. speed before coming to a full stop? There Then the car started to the south side. Qmay be circumstances when to do so might be In what manner did it start? A. Just as a question of fact; but certainly there is nothusual, I guess, only she was quick to start. ing in this case which would justify any Q. Then what happened to you when the car reasonable mind to infer negligence from started quickly? A. Then I fell off." On what appellant says occurred in view of all cross-examination appellant said: That the the circumstances as he relates them. The car did not stop, but was in motion all the following cases, which in their facts are as time; that he did not see nor hear that the nearly parallel with the case at bar as can conductor signaled or told the motorman to be found, clearly sustain the foregoing constop the car; that he had it in mind that the clusion: Blakney v. Seattle Electric Co., car stopped on the north side of the street 28 Wash. 607, 68 Pac. 1037; Sims v. Met. St. whether there was any one to get on or off Ry. Co., 65 App. Div. 270, 72 N. Y. Supp. the car or not. 835. See, also, Nellis on Street Railroad Accident Law, pp. 134, 210, and Nellis on Street Surface Railroads, pp. 451, 452. At all events, the jury were fully justified to find the issue of negligence in favor of respondent. This issue not only was the vital issue, but it was one to which all other issues were secondary and subordinate. secondary and subordinate. The appellant cannot recover if he failed to sustain this is The foregoing, in substance, is all the evidence there is upon the question of respondent's negligence. From what fact or facts disclosed by the foregoing statements could the jury infer that either the conductor or motorman was negligent? Concede that appellant told the conductor that appellant wanted to alight at Ninth South street. Con sustained this issue; but we think it is quite | and circumstances disclosed by the record, clear that the verdict was not, and, in the are not prejudicial to the rights of the comnature of things, could not have been, against plaining party. appellant upon the ground of contributory In conclusion we desire to add that, in ornegligence. But, assuming that it was, then der to avoid any misconception of the scope again the verdict is thoroughly justified by of our holding, we repeat that we refuse to the facts. Nor was there anything to which reverse this judgment upon the sole ground the two doctors testified that was relevant to that in our judgment the errors committed the issues of either negligence or contributory by the court in the admission of the testinegligence; but that portion of the testimony of the two doctors, in view of the pemony which we hold was erroneously ad- culiar circumstances of this case, were enmitted related entirely to the injuries and consequent damages appellant claimed to have sustained. If appellant failed to establish the issue of negligence, the question of whether he was injured or damaged was immaterial, and hence any error that may have been committed in admitting evidence on the latter issue was error without prejudice and cannot affect the judgment. tirely immaterial, and hence not prejudicial errors. Further, that the statement which was made by appellant to Dr. Van Cott, and which we have held not to have been prejudicial, is held not to have been so: (1) Because there is nothing in the statement itself from which it is reasonable to assume that it was necessary for the doctor to know, even though he intended to treat appellant; (2) because the doctor testified that it contained nothing to that effect; and (3) because, under all of the facts and circumstances disclosed by the record, the trial court was justified in ruling the statement as not within the statute, and hence not within the privilege. We do not desire to be understood as laying down a hard and fast rule as to when a particular statement is or is not within the statute; but we hold that that must be determined in each case in accordance with the peculiar facts and circumstances and in accordance with the rules referred to in this opinion. For the reasons aforesaid, the judgment therefore should be, and it accordingly is, affirmed, with costs to respondent. We remark further that it is likewise true that the statement of Dr. Van Cott which was admitted in evidence may have reflected upon appellant's contributory negligence; but, if this be conceded, this in no way affected the issue of respondent's negligence. The statement in writing which appellant gave to Dr. Van Cott, when compared with appellant's testimony at the trial, differed only in this: That in the written statement it is stated that appellant jumped and fell, while in his testimony he said he fell from the car. If, in view of all the circumstances detailed, he jumped, he clearly was guilty of contributory negligence; but if he did not jump, but fell from the car, then, nevertheless, there is nothing disclosed from his testimony, nor from the surrounding circumstances, from which the jury or any one else MCCARTY, J. (concurring). I concur in could infer negligence upon the part of re- the foregoing opinion. Appellant introduced spondent's servants which could reasonably an abundance of evidence tending to show be said to have been the proximate cause that he received a severe, painful, and perof appellant's fall and consequent injury. manent injury when he alighted or fell from For the reasons above stated, the error the car. While it may be said that there is which it is contended the court committed an apparent conflict in the evidence as to in permitting Dr. Van Cott to testify that the extent of appellant's injury, yet the eviappellant was conscious and rational when dence introduced both by appellant and rehe gave and signed the statement is also im- spondent, without conflict, shows that he material. As we have already pointed out, was severely injured. Therefore the concluthere was no essential difference between ap- sion is irresistible that the failure of the pellant's testimony at the trial and that con- jury to return a verdict in appellant's favor tained in the written statement. If the was not due to failure of proof to show statement therefore was substantially true, injury, nor because of any conflict in the and the jury was required to assume it to evidence on this point. Dr. Van Cott in his be so since he practically repeated it under testimony says (referring to his first visit oath, it cannot affect the judgment in any to see appellant after the accident occurred): way whether the court erred in this regard "I asked him where he was injured, and Moreover, it is manifest that the took hold of his knee and started to move verdict of the jury is not based upon this it, and there was considerable pain there, statement. We have thus given the appel- and he could not move the limb very well lant what seems to us to be full benefit of without considerable pain. * * * I could all his alleged errors. While it is our duty not examine him there satisfactorily, as it was to pass upon all material assignments of er- so painful." On cross-examination he testiror and to give them full scope and effect, it fied, in part, as follows: "Q. He was in great is equally our duty to refuse to reverse a pain, was he not, at that time? A. Well he judgment where it is made to appear from was in some pain. Q. Did he tell you he the very record presented for review that was in great pain? A. No, he didn't say |