Q.

to have been committed the appellant and said Moore rented a room for light housekeeping from a Mrs. Senior, who was a witness for the state; that the appellant and said Moore lived together in said room as husband and wife for about two months; and that the appellant spoke of said Moore as her husband during the time that they lived in said room. On cross-examination counsel for appellant, in referring to her and Mr. Moore, asked the witness certain questions. Such questions and the witness' replies thereto are as follows: "Q. What did she say about him? A. She would speak about Mr. Moore as her husband to me, Q. Did she ever tell you they were married? A. Yes, sir. She told you they had been married? A. Yes, sir." The sheriff's wife, another witness for the state, in substance, testified that the appellant while she was confined in jail prior to the trial frequently spoke of Mr. Moore as her husband, and called him her husband, and said that the 3d day of August was the anniversary of her wedding day. The statements by the appellant that she was the wife of Mr. Moore were made on various occasions and to different persons. These statements were made voluntarily and unequivocally. Notwithstanding this, counsel for appellant insists that these admissions on the part of appellant were insufficient to establish the fact of marriage. We think the modern authorities are clearly to the contrary. We have recently held in two cases, namely, State v. Thompson, 31 Utah 228, 87 Pac. 709, and State v. Greene, 33 Utah 497, 94 Pac. 987, that admissions of marriage by the accused were admissible to prove that fact in prosecutions for adultery. In an early case appealed from this territory to the Supreme Court of the United States-Miles v. United States, 103 U. S. 311, 26 L. Ed. 481-that court held that in a prosecution for bigamy the marriage could be proved by the admissions of the defendant. (United States v. Miles, 2 Utah 19.) The following cases all hold that in prosecutions for adultery the admissions of the accused that he was married, and that his wife was alive when the alleged offense was committed, are admissible to prove the fact of

marriage, and that such admissions without further evidence, are sufficient to sustain a finding of marriage. (State v. Goodrich, 14 W. Va. 834; State v. Medburry, 8 R. I. 543; Boger v. State, 19 Tex. App. 91; State v. McDonald, 25 Mo. 176; Commonwealth v. Holt, 121 Mass. 61; State v. Libby, 44 Me. 469, 474, 69 Am. Dec. 115; State v. Still, 68 S. C. 37, 46 S. E. 524, 102 Am. St. Rep. 657.) In 3 Ency. Ev. 323, the law upon this subject is stated as follows: "Thus in the prosecution of an offense where proof of the marriage of the accused is essential, the fact may be proved by his admission of the fact." Cases in support of this text are cited from a number of jurisdictions, and we refer the reader to the Encyclopedia of Evidence without citing the cases here. The admissions of marriage made by the appellant were properly admitted in evidence against her. The weight and effect to be given them were questions for the jury, and, as the admissions were of the character which authorized the jury to find the fact of marriage from them as made, this assignment cannot be sustained.

The further objection is made that the evidence in regard to the adulterous act is insufficient to establish the offense charged. It would subserve no good purpose to set forth even the substance of the evidence which was before the jury upon this point. Some of it is not of that character which we would care to repeat; hence it must suffice to say that in our judgment the evidence was ample from which the jury could infer that the act constituting the offense charged had actually taken place. Counsel for appellant frankly concedes that the state had proved all the essential facts from which the guilt of appellant might have been inferred, but he contends that the state went further and negatived the inferences, and thus left them without probative force. Whether this was so or not was, however, a question to be determined by the jury, and is not a question of law for the court. The jury, under instructions from the court as to the law, none of which is complained of, passed upon the weight and effect of the evidence, and, in view that there is competent evidence in support of every element constitu

ting the offense charged, and, as we have pointed out, the record discloses no errors of law, we are powerless to interfere.

The judgment, therefore, should be affirmed. ordered.

STRAUP, C. J., and MCCARTY, J., concur.

It is so

MADSEN v. UTAH LIGHT & RAILWAY COMPANY.

No. 2038. Decided November 17, 1909 (105 Pac. 799).

1. WITNESSES

"PRIVILEGED

COMMUNICATIONS". PHYSICIAN AND PATIENT. The intent in enacting Comp. Laws 1907, sec. 3414, subd. 4, providing that a physician 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 him to prescribe for the patient, was not that all information, whether by communication or otherwise, obtained by physicians from their patients, should be privileged, but such information only as may reasonably be necessary to enable the physicians to apply their full professional skill for their patients' benefit, which information is privileged, although it may be a narrative of the facts leading to an accidental injury. (Page 536.)

2. WITNESSES-PRIVILEGED

1

TIENT. Where it appears that a physician has prescribed for or treated a person, or has obtained any information from such person for the purpose of doing so, the inference arises that such information was necessary, so that it would be a privileged communication, and not competent evidence, over the patient's objection, and, unless such inference is rebutted the ultimate fact that it was necessary may be assumed to be established; but such inference is negatived by the testimony of the physician disclosing to the court just what the facts were under which the information was obtained, when it may be that the inference is entirely overcome, though the testimony of the physician may not be conclusive, and the court may be justified in holding the information necessary, notwithstanding the statement of the physician to the contrary.1 (Page 538.)

1 Munz v. Salt Lake City, 25 Utah 220, 70 Pac. 852.

3. WITNESSES-PRIVILEGED COMMUNICATIONS-STATEMENTS TO PHYSICIAN. Plaintiff, injured in alighting from a street car, gave a statement to a physician treating him to the effect: That he was going home on the car, standing on the lower step, expecting to get off on the north side of a certain street, but the car kept on going, and he got off and was thrown to the ground; that he did not tell the conductor to stop on the north side of the street, but thought that he always did stop on that side, and therefore jumped off; that when he jumped he fell on his left side and could not get home without assistance. Held, that the information was not necessary to assist the physician to intelligently treat plaintiff for his injury and was not a privileged communication. (Page 542.)

4. WITNESSES-PRIVILEGED COMMUNICATIONS. Where physicians made a physical examination of an injured person whom they put under the influence of an anaesthetic to obtain information to enable them to treat his injury, information obtained thereby was a privileged communication. (Page 543.)

5. APPEAL AND ERROR-REVIEW-ERRONEOUS EVIDENCE-INFERENCEPREJUDICE. As a general rule, where the court admits incompetent evidence upon a material issue, all the party against whom such evidence is admitted need do is to produce the record disclosing the admission of such evidence, and his objection and exception, from which the legal inference obtains that the error is prejudicial, and hence is reversible error; but the opposite party may show from the record that the error is nevertheless not fatal. (Page 544.)

6. APPEAL AND ERROR-REVIEW-PREJUDICIAL ERROR. Under Comp. Laws 1907, sec. 3285, providing that no exception shall be regarded unless the decision excepted to is material and prejudicial to the substantial rights of the party excepting, error in the admission of evidence will not be ground for reversal of a judgment for defendant, where it relates to an issue which is made immaterial because another vital issue is found in defendant's favor, or unless upon the record, as presented to the appellate court, there is at least a possibility of injury; and hence a judgment for defendant, in an action for injuries to a street car passenger, will not be reversed for the erroneous admission of privileged communications from plaintiff to his physician, where the evidence sustained the finding that defendant was not negligent. (Page 546.)

7. CARRIERS-STREET RAILROADS-INJURY TO PASSENGER EVIDENCE. In an action for injury to a street car passenger, evidence held to support a finding that defendant was not negligent. (Page 546.)

36 Utah-34.

APPEAL from District Court, Third District; Hon. M. L. Ritchie, Judge.

Action by N. P. Madsen against the Utah Light & Railway Company.

Judgment for defendant. Plaintiff appealed.

AFFIRMED.

STRAUP, C. J., dissenting.

James D. Pardee for appellant.

P. L. Williams, George Smith, and John G. Willis for respondent.

APPELLANT'S POINTS.

The third error complained of relates to the question asked of Dr. Van Cott by the defendant, to-wit: Q. “At the time you had the conversation resulting in putting this -making this statement (defendant's exhibit 1) was Mr. Madsen conscious, rational or not? A. Yes sir." The ob jection to this was made by plaintiff on the ground that the matter was incompetent, irrelevant and immaterial. This raises the question of the competency of Dr. Van Cott to testify to any condition, mental or physical, knowledge of which he gained by treating the plaintiff as a physician. Under section 3414, subdivision 4, Laws of Utah 1907.

If our statute prevents a physician from testifying, it certainly prevents a physician from testifying to the mental condition of his patient as much as to any physical condition of his patient. The lower court was entirely erroneous when he permitted Dr. Van Cott to answer the question. (Flint's Est., 100 Cal. 391; In re Nelson's Estate, 132 Cal. 182; In re Redfield's Est., 116 Cal. 637; Gurley v. Park, 135 Ind. 440; Bracnney v. Fogel, 156 Ind. 535; Towles v. McCurdy, 163 Ind. 12; In re Hunt's Will, 122 Wis. 460.) The law is that where the relation of the physician and patient exist it will be presumed that the information in question would not have been imparted to the physician, except for