after stating tbe case. Defendant’s counsel insist in this Court that it did not have a fair trial, upon tbe grounds (in part) that it was most material to its defense to elicit from tbe physicians tbeir opinions and tbe knowledge they possessed of tbe cause of assured’s death and bis true physical condition, especially as to bis heart at and before tbe time of making tbe application, upen which its defense was based, which knowledge they had obtained while being his attending physicians; and that they had a right, by reaspn. of the waiver set out in the application, to have their evidence . as to those matters submitted to tbe jury. But that the Court below excluded such evidence and confined them, tbe physi--ciansj in tbeir evidence to such knowledge as they bad obtained otherwise than as attending physicians, under tbe act •-of 1885, Chap. 159, viz: “No person duly authorized to practice physic or surgery shall be required to disclose any information which be may have acquired in attending a patient in a professional character, and 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; provided that tbe presiding Judge of a Superior Court may compel such disclosure if, in bis opinion, tbe same is necessary to a proper administration of justice.”
But it is contended by plaintiff’s counsel that defendant did not except to tbe instruction by tbe Court to Dr. McMillan and other physicians that they could not testify as to such communications, and could not express an opinion based on such knowledge so- acquired, and therefore this Court can not review such ruling.
*323The record in the case is conflicting upon this contention. While it is stated in the “supplemental statement to be added, * * * the defendant did not except to such instructions,” jet it does appear in the record (pages 20, 21), upon the examination of Dr. McMillan, who was admitted to be an expert, that the following questions were propounded to him, excluded and exception taken, viz: “State, Doctor, for what purpose you administered narcotics to the deceased, John E. Euller. * * * State, Doctor, from your attendance upon de-’ ceased, from having treated him, and from your knowledege of his habits and condition, if you can give an opinion as to the cause of his death. * * * Defendant proposed to show by this witness the purpose for which .he attended him, Eul-ler.” Excluded and exception taken. Also, upon the examination of Dr. Pope, who was admitted to be an expert: “Erom your knowledge of the deceased, your association wkh him, and your knowledge of his use of whiskey and narcotics, state what, in your opinion, was the cause of his death.” Excluded upon objection, and excepted to. Also, “Erom what he told-you when he came to you in a nervous condition, what was the cause of his nervousness V’ Excluded upon objection, and- excepted to.
Couple these questions with the statement of his Honor (in the “additional, statement”) that “the Court ruled as matters of law that the evidence was competent or incompetent, as shown in the statement of the case on appeal, just as it would have done if the application had been admitted before such rulings were made,” it clearly appears to us from the record that the exception was taken, and became competent upon the introduction of the application thereafter. This practice, however, of admitting evidence out of its order, and ruling upon evidence upon the assumption that other evidence had been introduced, or that it would be afterwards, is not approved and should not be allowed. The confusion *324involved in the trial of this action seems to bave arisen from that canse.
The question, therefore, first requiring our decision is whether the plaintiff is bound by the waiver set out in the application, .notwithstanding the statute of 1885.
At common law there is no privilege extending to the relation between patient and physician; while, as between attorney and client, the attorney entrusted with the secrets of the cause by the client shall not be compelled to give evidence of such conversation or- matters of privacy, as come to his knowledge by virtue of such trust and confidence; but, with the client’s consent, it may be waived, and he may be compelled to testify. The privilege between patient and physician created by our statute is less stringent and more lax than that of the common law between attorney and client. As between the latter, the attorney’s mouth is sealed for all time (except by consent of client), and he can not be compelled by the Court to testify; while under our statute it is provided that the Judge, in furtherance of the administration of justice, may compel the physician to disclose the information acquired by him from his patient.
We are, therefore, of the opinion that the waiver stated in the application is good and binding upon the beneficiary, and that his Honor erred in excluding the testimony of the physician as to knowledge and information acquired from deceased while attending him professionally. This view is sustained by many authorities cited by the learned counsel of defendant, among which are Grand Rapids v. Martin, 41 Mich., 667; Foley v. Royal Arcanum, 78 Hun., 222; Andorina v. Mutual Reserve Fund Life Asso., 34 Fed. Rep., 870; Daughtery v. Life Ins. Co., 87 Hun., 15.
The other exceptions and assignments of error seem to have grown out, to a great extent, of the exclusion of the evidence *325above stated, and canses for the same may not again arise. We therefore deem it unnecessary to pass upon them.
.For tbe error above stated, there will have to be a new trial.
New trial.