¶1This is an action of tort. The plaintiff's declaration contains two counts, — one for assault and battery; the other, malicious prosecution. Verdict and judgment were rendered in favor of defendant.
¶2Plaintiff introduced one physician, known as an “ eclectic,” and who had never graduated at any regular school of medicine, who testified to her injuries. The defendant then introduced two physicians as witnesses who had been called to treat her both before and after the alleged trouble with the defendant. They obtained no knowledge of her ailments and condition except what they had obtained in their professional capacity. This testimony was objected to as inadmissible under Iiow. Stat. § 7516. The objection was well taken, and the testimony should haye been excluded. Briesenmeister v. Supreme Lodge, 81 Mich. 525, and authorities there cited. The entire'subject is there fully discussed, rendering further mention here unnecessary. The defendant evidently recognizes the error, as he has filed no brief in' this Court.
¶3In the event of a new trial it is proper to say that it was competent for the defense to introduce these wit*49nesses, and prove by them that they had been called by the plaintiff to examine and prescribe for her. The failure of the plaintiff to produce them as witnesses was a legitimate fact for the jury in determining the merits of the case. One of the physicians testified that-after he had been called by the plaintiff, and had examined her, she told him that she had sued Mr. Foltz, and there was going to be a lawsuit o4er-it, and that she would want him as a witness. This testimony had no reference to her condition, and was competent. Such statements are not within the statute.
¶4For the error above mentioned the judgment must be reversed, with the costs of this Court, and a new trial ordered.