to the knowledge gained by a physician while attending a patient in a professional capacity, recognizes no such distinction. Nor does it define with precision what conduct on the part of the patient shall constitute a waiver of the privilege. Hence the courts of that State deemed themselves at liberty to determine this question upon general principles, derived from the supposed policy of the law. Not only, therefore, are the decisions of the courts of that State, and of other States having statutes formed upon the same model, valueless as guides to the meaning of the statute here in question, but the very fact that the Legislature of Arizona departed from the form of the New York statute indicates that it did so because it had a different purpose to express. We are unable to see anything that would justify us in refusing judicial recognition to a distinction thus laid hold of by the lawmaking body in defining the extent and conditions of the privilege. To construe the Act in accordance with the contention of plaintiff in error would not only be a departure from its language, but would render it inapplicable in all cases where the "physical or supposed physical disease" is the subject of judicial inquiry, and where any averment respecting it is made in pleading or evidence upon the subject is introduced at the trial in behalf of the patient. This would deprive the privilege of the greater part of its value, by confining its enjoyment to the comparatively rare and unimportant instances where the patient might have no occasion to raise an issue or introduce evidence on the subject, or where the patient's disease might happen to be under investigation in a controversy between other parties. We are constrained to reject this construction. The other questions that are raised require no special mention. It is sufficient to say that we find no error warranting a reversal of the judgment. Judgment affirmed. HUGHES and DAY, JJ., dissenting. 235 U.S. MR. JUSTICE HUGHES, with whom MR. JUSTICE DAY concurred, dissenting. I am unable to agree to the approval of the ruling which excluded the physicians' testimony. It should be supposed that it was the legislative intent to protect the patient in preserving secrecy with respect to his ailments and not to give him a monopoly of testimony as to his condition while under treatment. Here, not only did the plaintiff introduce the evidence of his nurse, describing in detail his bodily injuries and the medical treatment, but the plaintiff offered himself as a witness and voluntarily testified as to his bodily condition. His testimony covered the time during which he was under the physician's examination, and it was upon this testimony that he sought to have the extent of his injuries determined by the jury and damages awarded accordingly. To permit him, while thus disclosing his physical disorders, to claim a privilege in order to protect himself from contradiction by his physician as to the same matter, would be, as it seems to me, so inconsistent with the proper administration of justice that we are not at liberty to find a warrant for this procedure in the statute unless its language prohibits any other construction. [See Hunt v. Blackburn, 128 U. S. 464, 470; Epstein v. Railroad, 250 Missouri, 1, 25; Roeser v. Pease, 37 Oklahoma, 222, 227; Forrest v. Portland Ry. L. & P. Co., 64 Oregon, 240; Capron v. Douglass, 193 N. Y. 11; 4 Wigmore on Evidence, § 2389 (2).] As I read the Arizona statute it was framed not to accomplish, but to prevent, such a result. We have not been referred to any construction of it by either the territorial or state court, and we must construe it for ourselves. To my mind, its meaning is that if the patient voluntarily testifies as to his physical condition at the time of the examination, he cannot shut out his physician's testimony as to the same subject. To reach the contrary 235 U. S. HUGHES and DAY, JJ., dissenting. conclusion, emphasis is placed on the words 'such communications' in the proviso, and it is insisted that the proviso was to apply only if the plaintiff testifies as to what he told the physician. I think that this is altogether too narrow. When the patient submits himself to an examination, he as truly communicates his condition to the physician as if he tells him in words. Although the patient were dumb, his submission to inspection in order that he might be treated would be none the less a communication of what is thus made known. That is the very ground of the privilege. Nor does the fact that the statute, with unnecessary diffuseness, refers in the sentence defining the privilege to 'any communication' or 'any knowledge obtained by personal examination' limit the natural meaning of the proviso. In saying that 'if a person offer himself as a witness and voluntarily testify with reference to such communications,' it is to be deemed 'a consent' to the physician's testifying, the proviso may be, and I think should be, taken to embrace implied as well as express communications. I can find no reasonable basis for a distinction. It is said that the plaintiff may not know what the physician has observed or what testimony he may give. But when the plaintiff testifies he invites analysis and contradiction, and in contemplation of law he asks to have his statement judged by what is shown to be the truth of the matter. If the plaintiff testifies as to what he told the physician, it is conceded that the physician may be examined, and the obvious reason is that the plaintiff is not to be permitted to insist upon his privilege as to what he himself is disclosing. This is the policy of the statute and it governs equally, as I read it, when the plaintiff testifies as to his physical condition at the time he submits himself to the physician's examination. The words 'such communications' are broad enough to cover all communications for the purpose of treatment, whether by utterance or by what is usually more revealing the HUGHES and DAY, JJ., dissenting. 235 U.S. yielding of one's body to the scrutiny of the practitioner. To repeat, it seems to me that the statute was intended to make it impossible for the plaintiff to claim the privilege when he himself has testified as to the subject of it. As in this view competent, and presumably important, evidence was excluded, I think that the judgment should be reversed. I am authorized to say that MR. JUSTICE DAY concurs in this dissent. 235 U. S. Opinions Per Curiam, Etc. OPINIONS PER CURIAM, ETC., FROM OCTOBER 12, 1914, TO JANUARY 11, 1915. No. Original. Ex parte: IN THE MATTER OF JARED FLAGG, PETITIONER. Submitted October 19, 1914. Decided October 26, 1914. Motion for leave to file petition for writ of prohibition or mandamus denied. Mr. Robert C. Beatty and Mr. Wade H. Ellis for the petitioner. The Attorney General, The Solicitor General, and Mr. Assistant Attorney General Wallace opposing. No. 73. F. W. RITTERBUSCH, AS COUNTY TREASURER, ETC., ET AL., APPELLANTS, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY. Appeal from the United States Circuit Court of Appeals for the Eighth Circuit. Motion to dismiss and the merits submitted October 19, 1914. Decided October 26, 1914. Per Curiam. Dismissed for want of jurisdiction upon the authority of Bagley v. General Fire Extinguisher Co., 212 U. S. 477; Weir v. Rountree, 216 U. S. 607; Shulthis v. McDougal, 225 U. S. 561, 569. Mr. Charles West for the appellants. Mr. S. T. Bledsoe for the appellee. No. 302. THE UNITED STATES FIDELITY & GUARANTY COMPANY OF BALTIMORE, MD., PLAINTIFF IN ERROR, v. FRED H. POETKER, RECEIVER, ETC. In error to the Supreme Court of the State of Indiana. Motion to dismiss or affirm or place on the summary docket submitted October 13, 1914. Decided October 26, 1914. Per Curiam. Dismissed for want of jurisdiction upon the authority of |