SpaldiNG, Ch. J.
This is an action for damages for breach of promise of marriage aggravated by seduction. The defendant is a bachelor forty-six or forty-seven years of age, and quite well to do, owning and residing on a farm in Towner county. The plaintiff was a divorced woman and the mother of two children, who were not living with her at the time the incidents occurred which are the basis of this action.
She and the defendant were strangers. She heard that he was in need of female help in his household, and applied to him for employ; ment under her maiden name. Her application resulted in her being employed as housekeeper.
It is not now necessary to relate the acts which occurred between the parties, which, according to plaintiff’s version, resulted in illicit intercourse between them, and the birth of a child which died shortly after its birth.
The defendant denies in toto all illicit relations and any agreement to marry, and claims not to have known that she was pregnant until the time of her confinement. On becoming ill, she asked him to call the doctor, which he accordingly did. The doctor visited her in response to the call, and she was delivered of a child. He visited her a second time and a third time. After the plaintiff had shown facts and acts which she claimed constituted an engagement to marry, and the subsequent relations of the parties, the doctor who attended her during confinement was called as a witness by the defendant. He testified that McWilliams, the defendant, called him over the telephone on the morning of the 22d of January, 1910; that he heard him say to someone that “the doctor wanted to know what is the matter with you;” that McWilliams replied to the doctor. His reply was excluded on objection. On this visit he was acting as her physician and nothing else, and a child was born to her at that time. We pass over certain objections made to his testifying as to the child being full term or otherwise, and come at once to a question on which a majority of the members of this court, after a reargument granted and had, are agreed, and which compels a reversal.
[569]*569The doctor testified that he visited the plaintiff on a third occasion in the month of January, 1910, about a week following his first visit to her. On that occasion he had a conversation with her of which he had a recollection. The doctor was examined by plaintiff for the purpose of laying the foundation for an objection, and testified that this conversation was not had under the same conditions and circumstances as previous conversations; that he was not there in the capacity of a physician or treating the patient at that time; that he went there by request through her sister over the telephone, and that he took it not to be in a professional capacity; that, on receiving the call through the sister to go there, he went and found plaintiff still in bed; that he did not talk to her about her physical condition, or how she was getting along; that he might have asked her how she felt; that this was about a week after his second visit; that he had been there in the capacity of a physician and taken charge of the patient during confinement; that on his second visit he discharged himself and told her that he would not come again unless she requested him to; that he did not believe she was sick when he was there; that she was in bed, but had recovered from confinement, and was not what we could call sick, but was apparently in perfect health and normal; that he did not make any examination of her physically, though he thought he asked her if she felt all right; that he did not talk to her about medicine or treatment or ask her about that at all; that, at that time, he had something else in mind other than a professional trip, and no one had agreed to compensate him for that trip; that he made it as an act of charity; that McWilliams had never requested him to go there; that the last talk he had had with plaintiff was that he would not call again unless sent for by her.
After these preliminaries, the defendant offered to prove by the witness that, about the 27th day of January, 1910, the witness had a conversation with plaintiff, wherein she told witness that the defendant had never promised to marry her, and that she and defendant had never talked of marriage. This offer was objected to on the ground that no foundation was laid; that it was incompetent, irrelevant, and immaterial; and for the reason that it was immaterial under the provisions of subdivision 3, § 7304, Rev. Codes 1905. This objection was [570]*570sustained and exception taken, whereupon offer of proof number 4 was made in writing.
This offer was to prove by the doctor that, on or about the 27th day of January, 1910, plaintiff and witness had a conversation, and that in it the plaintiff told witness that the defendant had never promised to marry her, and that thereupon witness asked her why she had allowed him to have intercourse with her, and that she replied that she had allowed him to have intercourse with her because she believed that, if he did get her in a family way, he would marry her, and that she further said that there had never been any talk of marriage between plaintiff and defendant.
At this point counsel for plaintiff addressed the court and said: “If the court please, this brings up to a critical proposition, rather a critical proposition, and personally I would like a little time to examine the construction of the statute; if a man can be called in the capacity of a physician, and then switch over and become a spotter, it seems to me there should be some law on it.” The court replied: “Tes, I think that, myself,” whereupon counsel for defendant stated that he desired to take an exception to remarks of counsel, and asked the court to caution the jury to pay no attention to them. To this, the court replied: “No, the jury will pay no attention to those remarks at all, but I do think that this is a very serious proposition in this case. If a man can act as a doctor just as has been testified to here, if he can act as a doctor and make a call, and then when called again repudiate the professional part of it and become something else, if he can do that in a case of this kind, he can go out and separate his visits into two calls. ITe can make the call professionally and act as a detective right straight-through. We have a good and wholesome statute on that, and if this kind of business can prevail there is nothing in it, and it is wiped out and torn to pieces. The same would apply to attorneys, and no man would then be safe if that is what this statute means. No man can be safe in going to an attorney and telling him his story and telling him his case, because he could divide his inquiries into what was necessary for the case, and then pump him out of the other side and make use of it.” An exception was taken and granted to the remarks of the court. Error is assigned thereon.
1. It needs no argument to bring out the fact that these remarks [571]*571by tbe court in the presence of the jury, although directed to counsel, were highly prejudicial to the defendant. "We say this without at this time considering the question of the admissibility of statements claimed to have been made by plaintiff to the witness. The defendant was contending and attempting to show that statements made by the plaintiff to the witness, when not in attendance upon her in the capacity of a physician, were diametrically opposed to her claim upon the witness stand when seeking to recover from the defendant for a breach of promise of marriage, aggravated by seduction.
She had testified that the acts of sexual intercourse which resulted in her pregnancy occurred in the month of May, and that there was an engagement to marry. It was sought to show by the witness that she had told him that there never was any promise of marriage or any talk of marriage; that no intercourse occurred until after the 4th of July, a time much less than nine months prior to the birth of the child, and that she had had intercourse with the defendant, because she thought if she became pregnant, he would marry her.
It is. self-evident that these statements, if made, would have a very marked bearing upon the weight to be given her testimony on the main facts of the case. The proceedings of counsel for defendant were regular and proper, that is to say, they were offers of evidence which counsel had a right to make, and they were submitted in a proper manner to call for the ruling of the court. Instead of overruling the offers made and granting an exception, the court made a speech, in effect charging the defendant or his counsel with attempting to impose upon the plaintiff by employing the physician to both attend her and act as a detective or spotter to secure evidence, by way of admissions and statements from the plaintiff, favorable to defendant, and which might defeat her in any attempt to secure damages from him. Such remarks reflected upon the integrity and good faith of the defendant and his counsel, and may well have had a marked influence upon the verdict.
The plaintiff testified to acts and statements between the parties which might be construed as constituting an agreement to marry, also as to acts of illicit intercourse. The defendant denied positively any direct or implied agreement to marry, as well as any improper relations with the plaintiff. The testimony of neither party was corroborated to any considerable extent. The language used, if the testimony of the plain[572]*572tiff was true, and relied upon as constituting the agreement to many,, was susceptible of more than one interpretation. The defendant had never introduced her to his relatives or acquaintances as his promised wife; had never given her a ring or made her presents, or spoken of her in the presence of others as his future wife. She had never informed others that she had promised to be his wife, or contemplated assuming that relation to him. In this state of the record, it is apparent that evidence of but slight weight improperly excluded, if received, might change the verdict.
In this state of affairs, the court addresses remarks which, as we have said, seriously and unnecessarily reflect upon the integrity and the motives of the defense made by McWilliams. A case might be-imagined in which the testimony was nearly all one way and clearly showed an agreement to marry and other incidental facts, where such remarks might be held nonprejudicial, but in this case no such conditions existed when the offers were made or during the trial. Furthermore, that they were prejudicial is pretty clearly disclosed by comparison of the testimony of the witness given prior to these remarks, and his testimony as continued after he had heard them as addressed to-counsel. We have set out enough to show that he clearly testified before this attack of the court, that, on the third occasion, he was not visiting the plaintiff in his professional capacity; that he did not prescribe for her, nor investigate her condition with the view of prescribing for her, or do anything along those lines other than to make the conventional inquiry as to how she felt; that he did not understand that he was there in his capacity as physician.
Immediately after the remarks made by the court, he testified that he could not believe but what he was called in a professional capacity, and, after giving some details, that the conversation he had there with her was in connection with his professional call, and, partly at the suggestion of the court, he testified that any information he received at that time was acquired while he was attending the patient and asking questions concerning her health, which would be necessary for him to prescribe for her if he found she needed it.
The language used by the court was very strong and catchy. 11 might lead one to infer that the defendant had expressly employed the doctor to act as a detective and serve him in that capacity. No evi-[573]*573denee is disclosed having any tendency to support any inference or statement of that nature. This examination of the witness was preliminary to his offered testimony, and made to determine whether the testimony offered was privileged, and in so far as the doctor’s opinion on the subject had a bearing, it is obvious that the change of front was detrimental to the defendant. It was the duty of the court to, as far as possible, secure an unbiased statement from the physician as to his relations to the plaintiff on the occasion of the third visit. It may be that the latter part of his testimony was influenced by the language employed by the court, and, regardless of the effect of the language employed and the attitude of the court upon the jury, it may have influenced the testimony of the witness prejudicially to defendant. Counsel might by cross-examination have discredited the witness, but at that stage of the examination, and in that manner, it was not for the court to do so. People v. Fielding, 158 N. Y. 542, 46 L.R.A. 641, 70 Am. St. Rep. 495, 53 N. E. 497, 11 Am. Crim. Rep. 88; Edwards v. Mt. Hood Constr. Co. 64 Or. 308, 130 Pac. 49.
In the Fielding Case, the court says: “In a case that is free from doubt upon the merits, the appellate courts disregard errors of the trial court, even in a criminal case, when it is reasonably certain that they could not have affected the result. A proposition is reasonably certain when it is supported by the strong probabilities, but here, the strong probabilities are that the errors did affect the result. The average man cannot read the eloquent but inflammatory language of the district attorney without being impressed by it, and it is safe to presume that the effect would be heightened by hearing those words spoken with animation and enthusiasm under the exciting circumstances surrounding an important criminal trial. The jury might be told by the court to forget them, but could they forget them ? They might be told to disregard them, but how can we be certain that they did disregard them ?”
The above language applied to remarks by a prosecuting attorney. If the remarks of the prosecuting attorney in addressing the jury may be prejudicial to a party, how much more so will inflammatory remarks of the court be ? Every attorney of experience knows that, as a rule, the jurors watch the court for the slightest intimation as to its opinion as to the merits of the action, not only for remarks, but as to the in[574]*574flection of tbe voice, tbe countenance, gestures, and tbe general attitude and bearing toward tbe parties.
In tbe Edwards Case, tbe court says: “Tbe writer knows from experience on the circuit bench that it is sometimes very difficult for a judge to refrain from making comments on a case during the progress of the trial, and especially where an apparent injustice seems to have been perpetrated; but, after a reversal or two occasioned by this practice, he concluded to go not to the ant, but to the meek and lowly oyster, to 'consider its ways and be wise,’ and to keep the judicial mouth shut.”
2. In this connection, it may be observed that the record discloses many minor errors which we shall not take up separately or further, but all of which were unfavorable to the defendant, and which come very near, when considered in connection with the whole record, disclosing an attitude of the court unfavorable to the defendant, and which it seems to this court must have been clearly apparent to the jury throughout the trial.
We do not say that any one of these minor errors was sufficient to justify a reversal, but we do think they go a long way toward showing that the defendant did not have a fair trial. See Willoughby v. Smith, — N. D. —, 144 N. W. 79; People v. Fielding, 158 N. Y. 542, 550, 46 L.R.A. 641, 70 Am. St. Rep. 495, 53 N. E. 497, 11 Am. Crim. Rep. 88; Quanah, A. &. P. R. Co. v. Galloway, — Tex. Civ. App. —, 154 S. W. 653.
3. Having concluded that the judgment in this case must be reversed, it will be unnecessary for us to pass upon other assignments of error, except for the guidance of the court on a new trial. For this reason, we take up the assignments of such questions as are likely to arise on another trial.
The most important question in the case relates to the admissibility of testimony offered to show, by Dr. Roberts, that the plaintiff stated to him on the occasion of the third visit, to which we have referred, that the defendant had never promised to marry her, nor had any talk with her on the subject, and that she permitted him to have intercourse with her in the belief that, if she became pregnant, he would marry her, and that no intercourse occurred until after the 4th of July, 1909. The exclusion of evidence of these statements requires a consideration of [575]*575§ 7304, Eev. Codes 1905, which, as far as material, is as follows: “A person cannot be examined as a witness in the following cases: . . . A physician or surgeon cannot, without the consent of his patient, be examined as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient.
It is in effect contended by respondent that ¶ 3, § 7304, supra, inhibits the physician from testifying as to any conversation had with a patient while in attendance as a physician, or as to any facts learned while so engaged, regardless of their being necessary to enable the physician to prescribe or act for the patient.
By appellant it is urged that on the occasion of the third visit of Dr. Boberts, so far as disclosed by the record, he was not attending as her physician, and, further, that in cases he was so in attendance upon her, the statements offered as made by the plaintiff to him were not within the prohibition of the statute, for the reason that they were not necessary to enable him to prescribe or act for her as her physician.
At common law, an attorney was not permitted to testify as to communications made by his client or knowledge acquired during consultations, but no such privilege was extended to physicians and patients. As to them, the privilege is purely statutory, and was intended to inspire confidence in the patient and encourage him in making a full disclosure to the physician as to his symptoms and condition, by preventing physicians from making known to the curious the ailments of their patients, particularly when afflicted with diseases which might bring reproach, criticism, unfriendly comment, or disgrace upon the patient, if known to exist. Capron v. Douglass, 193 N. Y. 11, 20 L.R.A.(N.S.) 1003, 85 N. E. 827; People v. Schuyler, 106 N. Y. 298, 12 N. E. 783; McKinney v. Grand Street, P. P. & F. R. Co. 104 N. Y. 352, 10 N. E. 544; Treanor v. Manhattan R. Co. 28 Abb. N. C. 47, 16 N. Y. Supp. 536; 4 Wigmore, Ev. § 2389.
4. It is quite universally held that, where a party to litigation seeks to exclude the testimony of a witness on the ground that it is privileged by statute or otherwise, the burden is upon the party desiring to exclude the testimony of the physician, to bring or show it within the terms of the statute granting the privilege. This rule is consonant with common sense and justice, and meets with our approval. People v. Schuyler, [576]*576supra, at p. 304; People v. Austin, 199 N. Y. 446, 93 N. E. 57; Griffiths v. Metropolitan Street R. Co. 171 N. Y. 106, 63 N. E. 808, 11 Am. Neg. Rep. 620; Edington v. Ætna L. Ins. Co. 77 N. Y. 564; 4 Wigmore, Ev. 2381. We are of the opinion that the burden thrown upon the plaintiff was not sustained, if the determination of the questions rests with the witness.
5. We are, however, satisfied that the question of the privileged character of the testimony is for the court, taking into consideration all the circumstances, and if necessary the opinion of the physician, and the belief of the patient. Griffiths v. Metropolitan Street R. Co. 171 N. Y. 106, 63 N. E. 808, 11 Am. Neg. Rep. 620; Re Redfield, 116 Cal. 637, 48 Pac. 794; Mitchell’s Case, 12 Abb. Pr. 249; Edison Electric Light Co. v. United States Electric Lighting Co. 44 Fed. 294; Johnson Steel Street-Rail Co v. North Branch Steel Co. 48 Fed. 191; Roeser v. Pease, 37 Okla. 222, 131 Pac. 534; 4 Wigmore, Ev. § 2383, note 2; 2 Enc. Ev. 115; but see Redmond v. Industrial Ben. Asso. 78 Hun, 104, 28 N. Y. Supp. 1075, ‘affirmed in 150 N. Y. 167, 44 N. E. 769.
6. Would the testimony of the doctor as to the statements made by plaintiff to him on the third visit, to which reference has been made, be privileged under the provisions of the statute? It is obvious that two elements must coincide to bring the testimony of this witness within the prohibition: First, he must have acquired the information while attending the patient in his professional capacity, and second, the information which it is sought to disclose must have been necessary to enable the physician to prescribe or act for the patient.
In the determination of this question, we are not influenced by any previous decisions of this court on the subject. There are none. We are thus left free to consider and determine it as seems most consonant with the purpose of the enactment, and best insures the administration of justice.
Nearly every state has a statute of this nature. They assume various forms, a few being identical with our own, others being much more general. The authorities on the subject are far from uniform. We do not attempt to refer to many, nor to discriminate and distinguish in this opinion between those which are in conflict. It is sufficient to say that we have given them careful and exhaustive examination, [577]*577have carefully weighed the reasons given by the respective courts for their conclusions, and, among the vast number of cases on this subject, have selected a few directly in point on statutes identical with our own, which seem to present reasons which are persuasive, and which most clearly tend to the fair administration of justice between parties.
This visit was a week or more subsequent to the birth of the .child. The doctor testified that the woman was in a normal condition. Had the information which defendant offered to show as acquired by the doctor relating to the time when the first intercourse occurred between the parties, been disclosed on or prior to his first visit, that is, prior to her confinement, it is apparent that it might have had some bearing upon his method of treating her or the child, but, coming so long subsequent thereto, it is very doubtful if it had any such bearing. In any event, we are unable to see how any question of the promise of marriage, or how her reasons for allowing defendant to have intercourse with her, could aid a physician in prescribing for her, even if he were there for that purpose on the occasion of the third visit. The burden was on the plaintiff to show that this information was necessary to enable the doctor to prescribe. Of course, we are not saying that the fact that he did not prescribe for her would make the evidence admissible. It would be too narrow a construction of the statute to admit the evidence whenever a physician, in seeking to ascertain whether a prescription is necessary, finds none needed. The statute unquestionably applies to information obtained, and necessary to enable -the physician to determine whether a prescription is necessary.
The provisions of the section referred to are most wholesome and salutary, when applied to cases coming within the reasons for the enactment of the statute, but, if construed too strongly in favor of the patient, 'the beneficent effects intended to result from this enactment will be far more than overcome by the injustice which must in many cases result. It would often enable the patient to give his version of an affair, and then exclude all conflicting evidence, and place the opposite party, at the mercy of the patient, who might testify falsely, or, by exaggeration or misinterpretation prevail, when, if the true facts were disclosed, no cause of action or defense would be shown. Such a result should not be encouraged when not made necessary by a fair interpretation or an imperative statute, and to hold, as in effect argued, that [578]*578any conversation bad by a patient with his physician while attending him as such is privileged would be to repeal by judicial fiat the solemn qualification imposed by the legislature upon the application of the privilege, by rendering the phrase, “which was necéssary to enable him to prescribe or act for the patient,” totally ineffective.
Of the many authorities bearing on this subject, we have selected for reference a few based on statutes identical with our own, not, however, unmindful of the fact, as we have indicated, that some may be found which apparently sustain respondent’s contention. Among these latter are several, where it was offered to show statements made by a patient to a physician in attendance, which appear not to have been made with a view to enabling the physician to prescribe or act, but which were made to a physician employed by the defendant in personal injury actions, and whose employment was as much to acquire information and prejudicial admissions from the patient as to prescribe for him. This case discloses no such facts, and it will be early enough to pass upon such a state of facts when it is before us.
Indiana cases are not, in the main, authority, for the reason that the corresponding statute of that state is much broader than our own, and contains no provision relating to the necessity of the information. However, in a recent Indian case, a question very similar to the one here involved was considered, and it was held that the testimony was not privileged. The report of that case discloses that a physician had attended upon a patient in an effort to relieve her from the consequences of a criminal operation. A few days after attending her, he called to collect his bill. He was aslced whether at that visit he had any conversation with the deceased except that which pertained to the collection of his bill. He answered: “None that I can recall; no more than a physician would have with a patient generally, — ask them how they were.” It was then proposed to prove that on that occasion the patient told him that the defendant had nothing to do with producing her condition and more to the same effect. This offer was refused. The court says: “It would be a perversion of the statute to hold that the. communication in question was privileged.” It may be remarked that the purpose sought to be accomplished by the introduction of this evidence was identical with that sought in the case at bar, namely, to prove conflicting statements. Seifert v. State, 160 Ind. 464, 98 Am. St. Rep. [579]*579340, 67 N. E. 100. See also Edington v. Ætna L. Ins. Co. 77 N. Y. 569; People v. Austin, 199 N. Y. 446, 93 N. E. 57; Griffiths v. Metropolitan Street R. Co. 171 N. Y. 106, 63 N. E. 808, 11 Am. Neg. Rep. 620; Benjamin v. Tupper Lake, 110 App. Div. 426, 97 N. Y. Supp. 512; Travis v. Haan, 119 App. Div. 138, 103 N. Y. Supp. 973; Griebel v. Brooklyn Heights R. Co. 68 App. Div. 204, 74 N. Y. Supp. 126; Missouri P. R. Co. v. Castle, 97 C. C. A. 124, 172 Fed. 841; Campau v. North, 39 Mich. 606, 33 Am. Rep. 433; Collins v. Mack, 31 Ark. 684; Re Black, 132 Cal. 392, 64 Pac. 695; Rogers, Expert Testimony, § 43; Smith v. John L. Roper Lumber Co. 147 N. C. 62, 125 Am. St. Rep. 535, 60 S. E. 717, 15 Ann. Cas. 580; and authorities collected in note in 15 Ann. Cas. 582. See also note in 17 Am. St. Rep. 565; People v. Cole, 113 Mich. 83, 71 N. W. 455.
In the Benjamin Case the court said: “There was also an error in excluding evidence that will require a new trial. A physician who had treated the plaintiff for the injury was called by the defendant and testified that he had a conversation with her as to the manner in which this accident occurred. He was then asked: 'What did she tell you as to that?’ This was objected to as incompetent and immaterial. In reply to questions by the court, the witness stated that 'this talk was while I was making an examination of her case in order to prescribe for her, and as a part of my examination.’ The court sustained the objection, and the defendant excepted. The witness nowhere stated that it was necessary for him to know how the accident happened in order to enable him to act for the plaintiff in a professional capacity, and it is apparent here that it was not necessary for him to know how the accident happened in order to enable him so to act. It was sufficient for that purpose that he knew or was informed of the character of the injuries received, and not as to how they were received. If the plaintiff in such talk made admissions to the physician as to the manner in which the accident happened, it not appearing that the inforniation so acquired was necessary to enable him to act in that capacity, such admissions were -not protected by § 834 of the Code of Civil Procedure.”
The Campau Case discloses that the plaintiff was a nurse. At the trial the court excluded certain testimony from Dr. Lichty, her physician. Plaintiff claimed she was ruptured by blows and other acts of [580]*580violence while acting as Campau’s nurse. He called Lichty, and sought to prove by him that, while he was attending her in a professional capacity, she told him that she had been ruptured before she went to live with plaintiff, and had not been ruptured by him. The question was objected to, and the trial court sustained the objection. The Michigan statute is substantially like our own as to the competency of a physician’s testimony. In disposing of the point on appeal, it was held that the exclusion of that testimony was error. The court said: “The objection and ruling were based on the statute. The common law gives no privilege in such a case. . . . The rule given by the statute is beneficial and based on elevated grounds of policy, and it ought not to be frittered away by refinements. It is not to be forgotten, however, that parties' have their rights, and that when one takes the stand as witness to establish, by his or her oath, the cause of action alleged, the state of facts to give immunity under the statute ought to appear distinctly before making any exclusion of proof of contradictory admissions. So far as practicable, the courts ought to see to it that the statute is not used as a mere guard, against exposure of the untruth of a party, and that a rule intended as a shield is not turned into a sword. The objection in the present case was not warranted by the facts in the record. The offer was to show Miss North’s admission that her rupture was not caused by plaintiff in error, but existed before she went to live with him. This was material, and it does not appear in the record from the doctor’s testimony or in any way that, in case she made the admission as to the pre-existence of the rupture, and as to its not being caused by plaintiff in error, it was information ‘necessary to enable the doctor to prescribe for her as a physician, or to do any act for her as a surgeon.’ And yet this is one of the fundamental conditions for exclusion which the statute specifies.”
In the Cole Case, the court said: “2 How. Anno. Stat. (Mich.) § 7516, prohibits a disclosure of any information acquired by any attending physician, ‘which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.’ The attending physician was asked if Miss Jordan told him who was the father of her child. This was ruled out as a confidential communication, within the prohibition of the statute. This information was not necessary to enable the physician to prescribe for her, [581]*581and tbe testimony was therefore admissible. . . . Judgment reversed and a new trial ordered.”
In tbe case of Green v. Terminal R. Asso. 211 Mo. 18, 109 S. W. 115, tbe Missouri court, passing upon a statute identical with ours, uses this language: “The statute does not say, in effect, that tbe door of tbe sick room shall be locked once for all. It does not say, in effect, tbe mouth of tbe physician . . . shall be closed once for all. Tbe wise general rule being that tbe admissions of a party to a suit made outside tbe court room are admissible in evidence against him, tbe statute does not say that all such admissions made to a physician or surgeon are privileged. It stands precisely tbe other way. Tbe information under its ban is not all information acquired from a patient, but is such only as was 'necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.’ These are clear words in tbe law, and under no canon of construction, should they be interpreted out of tbe law by refinement or . fanciful ills. In other words, tbe danger of frittering away this statute is not to operate as a scarecrow frightening courts from their duty to give to every word of it a due office and meaning, because zealous and astute at all times to see to it that the statute be so construed as not to strike down its obvious purpose.” I
In the Castle Case, decided by the circuit court of appeals of this circuit, the court through Judge Carland says: “The question then is narrowed down to this: Was the fact that plaintiff told the witness that he was injured by having his foot slip off the brake beam onto the ‘T’ rail of the track, and one of the car wheels of the first car passing over his foot, a confidential communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline? ... In the case at bar there was beyond question a crushed right leg about 4 inches above the ankle. The injury beyond question was caused by one of defendant’s cars passing over plaintiff’s leg. Whether the injury was caused by plaintiff’s or defendant’s negligence was the pivotal question in the case. It is impossible to imagine anything that Castle, the injured person, could say to the physician in reference to the cause of the injury that would in any way throw any light upon the manner of treating the same. How [582]*582the leg came to be crushed was for the purpose of treatment absolutely immaterial. What plaintiff told the witness was of no assistance whatever to enable him to discharge the functions of his office. The statute is in derogation of the common law, and often excludes the best evidence. It should not, therefore, be extended to matters of evidence not coming clearly within its provision, as the object and purpose of all trials is the development of the true facts in each case. We find no cases which, under similar circumstances, have held testimony such as was offered in the present case inadmissible.”
In the Roper Case, 147 N. C. 62, 125 Am. St. Rep. 535, 60 S. E. 717, 15 Ann. Cas. 580, the North Carolina court passed itpon a statute identical with our own except that to it is attached a proviso permitting the presiding judge to compel a disclosure, if, in his opinion, it was necessary to the administration of justice. In that case, the trial court declined to exercise the discretion conferred by the statute and admit the answer as a matter of right in the defendant, and the supreme court held that, in view of such action, it developed upon them to pass .upon the meaning and application of the paragraph reading, “which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.” This makes that case directly in point as an authority on the case at bar, and it was held that- information given by the patient to the physician, as to how he was hurt, was not privileged.
It has been suggested that the record discloses a mental condition of the plaintiff bordering on melancholia or some form of insanity, which might render it proper and necessary for the doctor to acquire information on the occasion of the third visit, as to the ’ relations between her and the defendant. A careful search of the record, however, discloses nothing which we think justifies such suggestion. It is true that it appears that she wept and was in doubt as to her future course, and there is some testimony to show that her sister found her crying, and told the defendant that if he did not marry her, he would pay for it, and that she replied to her sister and to him that it was no use to do anything; that when she left his house she would leave in her coffin; that she did not want his money; that, “I don’t need his money; 5 cents’ worth of carbolic acid is all I need.” The time of these occurrences and this statement is not definitely fixed, but it is clear, we [583]*583think, that they occurred after the third visit of tbe doctor. When this visit was made she was still in bed, but tbe conversation to which we have referred, and other acts disclosed in the record surrounding it, but which are of no importance in this connection, took place after she was up and around the house, and are given as having occurred in the. kitchen. lienee, they do not relate to her mental condition at the time of the visit in question, even if they are of enough significance to warrant consideration.
Many of the authorities cited on this question are not in point when carefully read. Many relate only to conversations which left their bearing in doubt. We see no room for doubt as to the information sought to be shown in this case as disclosed by.the record. We conclude that the statements in question are not.shown to be necessary to enable the doctor to prescribe or act for- the patient, and that she could have had no reasonable ground to believe them so, and that, hence, they were not privileged.
Y. Error is assigned because the court charged the jury that it might take into consideration the pain and physical suffering occasioned by the birth of the child, in assessing damages, if found for the plaintiff. The authorities on physical suffering occasioned by childbirth, constituting a proper element of damages in an action for breach of promise aggravated by seduction, are not in harmony. Some hold that they are too remote from the cause of action, which, of course, is the breach of promise. Others hold to the contrary. It is tnie that there must be some line drawn, beyond which facts do not constitute an element of damages in such case. In no case can the plaintiff recover all the damages directly and incidentally occasioned by the wrongful act of the defendant. We are disposed, however, to agree with the statement of this doctrine given by Mr. Sutherland in § 985 of his work on Damages, wherein he says: “If seduction is on principle an element of damages in an action for breach of promise, and the disgrace or injury to reputation which follows it is such an element, it seems illogical to exclude any other direct result of the seduction from the consideration of the jury. Mental suffering may result from seduction without pregnancy following, but compensation for disgrace or injury to reputation must be based on the theory that seduction has resulted in pregnancy. Hence the physical suffering arid the expense [584]*584connected with confinement, where pregnancy follows the seduction, are not more remote than injury to the reputation.”
Authorities holding that, in such an action, the fact of the birth of a child may be shown, are not in point on this question, however. In conflict with the opinion of Mr. Sutherland, see Giese v. Schultz, 53 Wis. 462, 10 N. W. 598; Giese v. Schultz, 65 Wis. 487, 27 N. W. 353. We hold that it was not error for the court to charge that the jury might, in case it found for the plaintiff, take into consideration the physical pain incident to the birth of the child, in fixing the damages.
8. The instruction that the jury might take into consideration all tlie other facts and circumstances in the case, we believe to be too broad, but we cannot say that it was prejudicial to the defendant in the instant ease.
9. Other errors occurred in excluding some of the evidence offered by defendant to show that, during the time the plaintiff claimed to have been engaged to marry him, she had received other men as company. It is self-evident that her relations to other men during such time, and the consent or objection of the defendant thereto, might have had an important bearing on the weight to be given the testimony of the plaintiff. If she was keeping company during the period when she claims to have been engaged to marry defendant, with other men, and particularly, if she was doing so with the knowledge of the defendant, and without objection on his part, it certainly would have a tendency to discredit her claims.
The same principle also applies to the sustaining of the objection of plaintiff to the question propounded to her, as to whether she told her sister anything about any talk of marriage, and to the ruling sustaining plaintiff’s objection to questions tending to impeach or discredit her evidence relating to the time when the child was begot.
10. It is further the contention of the appellant that the evidence is insufficient to sustain the verdict. To discuss this question fully would require the setting forth of a large volume of the testimony relating to the alleged acts of familiarity and intercourse between the parties, and their relations, and would unduly extend this opinion. We content ourselves with saying that, while the evidence is weak, and not convincing, when taken in connection with all the surrounding facts and circumstances shown, we think it was sufficient to warrant sub[585]*585mitting the issues to the jury. There was evidence tending to show an implied agreement to marry.
11. We have now passed upon all the questions which we think material and likely to arise on a second trial, but may observe that it is claimed that, if the testimony of the doctor was privileged, the plaintiff waived such privilege. It is unnecessary to pass upon this in view of our conclusion that his testimony was not privileged. The order denying a new trial and the judgment of the District Court are reversed.