G., M. N.R. Co. v. Willis , 171 Miss. 732 ( 1934 )

ON SUGGESTION OF ERROR. The rule has been long established in this jurisdiction that a judgment will not be reversed for error unless it be shown by the record that the error was actually prejudicial and harmful to the rights of the complaining party. Mississippi Utilities Co. v. Smith, 166 Miss. 105, 117, 145 So. 896; Goins v. State, 155 Miss. 662, 667, 124 So. 785. Consonant with that rule, when a party would seek a reversal because of excluded testimony, he must either place the witness on the stand, ask the questions, and have the answers made of record, or else the witness must be presented, and there must be a specific statement of what the answers or testimony of the witness would be, if allowed, so that the court may see from the record itself whether the offered evidence would be material and of benefit to the merits of the case, and whether its exclusion was actually harmful and prejudicial to the offerer. Bradley v. Howell,161 Miss. 346, 354, 133 So. 660, 134 So. 843.

To the rule last stated there are a few exceptions, and one of these is when a witness is tendered and it is sought to examine him upon matters which the law forbids him to disclose. For instance, the law forbids that an attorney shall disclose the knowledge which he has acquired from or for his client in and about his client's business. When an attorney is placed on the witness stand and, without his client's consent, it is attempted to interrogate him about his client's business, the witness is not only privileged to refuse to answer, it is his duty to refuse. And the offerer cannot state into the record what he expects to prove by that witness, for the law denies the right to prove by that witness anything of the matters sought to be elicited. Likewise as to a physician, upon which subject this court said in United States Fidelity Guaranty Co. v. Hood,124 Miss. 548, 571, 87 So. 115, 119, 15 A.L.R. 605: "The evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judge and the public may hear the statement of the physician in such case, though it be excluded from the jury." In these cases, if the knowledge sought to be placed in the record was acquired during the existence of the relationship which makes the information privileged, then the inquiry is not permitted to proceed further than to develop the actual existence of the privileged relationship.

Seeking to avail of the exception stated, appellant argues in its suggestion of error that, when the trial judge ruled that a dentist is a physician, appellant was thereby in effect precluded from getting into the record what appellant expected to prove by the dentist, tendered as a witness. But the law is that a dentist is not a physician, and communications to or knowledge obtained by a dentist is not privileged; and parties must try their cases under the law, or at least must endeavor, by all reasonably available means, to do so. A dentist not being a physician and not coming under the stated exception, it was the duty of appellant to specifically state into the record what was expected to be proved by him, and, had the court refused to allow appellant to so state, then the error would be reversible, and not until then. But appellant did not so specifically offer, and we must therefore adhere to our original opinion.

Suggestion of error overruled.