Plaintiff sued for damages resulting from personal injuries sustained in an automobile accident. Defendants admitted liability, leaving the amount of damages the sole issue to be tried. The jury returned a $50,000 verdict for plaintiff. Defendants’ motion for new trial was denied and they appeal here.
Defendants urge (1) that the verdict was excessive, (2) that it was сontrary to the great weight of the evidence, (3) that it was error for the court, at the request and prompting оf counsel for plaintiff, to inquire on the voir dire whether any of the jury were officers, employees, or stockholders in any stock company or members of any mutual insurance company, (4) that the court erred in refusing to instruct that plaintiff’s failure to call physicians who had treated or examined him and who were not shown *276 to be unavailаble as witnesses created a presumption tbat tbeir testimony would bave been adverse tobim, and (5) tbat it was error for tbe court, after informing counsel tbat be would instruct tbat tbe jury might consider tbe plaintiffs failure to call sucb doctors and permitting defendants’ counsel to argue tbat subject to tbe jury, then to instruct tbe jury tbat they should ignore sucb аrgument of counsel and to refuse to instruct as stated.
While there is quibbling about it, we are satisfied from tbe record tbаt counsel for plaintiff bad been advised prior to trial as to tbe name of defendants’ insurer and tbat it was a stоck company, and tbat, therefore, there was no question in counsel’s mind at time of trial of a mutual insurance company of which some one of tbe jurors might be a member. It is evident tbat plaintiff’s counsel requested and induсed tbe court to direct tbe insurance question to tbe jurors, not for tbe purpose of eliciting information from them touching on tbeir qualifications to sit as jurors, but for tbe purpose of conveying information to them about tbе existence of insurance in tbe case and influencing them thereby. Tbe size of tbe verdict against tbe background of tbe record in this case would indicate tbat it did influence them. There is no need to review tbe law and previous decisions of this Court on tbe subject. Enough was said by Mr. Justice Black in
Darr
v.
Buckley,
Plaintiff introduced the testimony of 2 doctors concerning bis injuries and physical conditiоn. Two other doctors treated or examined him both before and after tbe accident. Plaintiff did not call them as witnesses. Tbeir testimony would bave been perti
*277
nent to the question of plaintiff’s injuries, his statements concerning thе same, and, consequently, his damages. They were not shown to have been unavailable to plaintiff as witnessеs. Defendants requested an instruction that plaintiff’s failure to call them created a presumption that if they wеre called their testimony would be adverse to plaintiff. The ■court refused to give this instruction. Defendants ■claim еrror, relying on
Cooley
v.
Foltz,
“Provided, however, That in case such patient shall bring an action аgainst any defendant to recover for any personal injuries, or for any malpractice, if such plaintiff shall produce any physician as a witness in his own behalf, who has treated him for such injury, or for any disease or condition, with reference to which such malpractice is alleged, he shall be deemed to have waived the privilege herein-before provided for, as to any or all other physicians, who may have treated him for such injuries, disease or condition.”
*278 Plaintiff having introduced some medical testimony, he waived the privilege, under the proviso of' the statute, as to the 2 doctors not called by him. Their testimony, in the absence of any factual showing to the contrary, must, therefore, be deemed to have been available to defendants. The reason in the cited cases for allowing defendant the benefit of the presumption instruction, namely, legal unavailability of the testimony to defendant, having disappeared by amendment of the statute, the decisions therein on the presumption question are not controlling on the record before us. Defendants were not entitled tо such instruction here. With respect to the availability to defendants of the testimony of plaintiff’s doctors, it is also worth noting’ that Court Rule No 35, § 6(b) (1945) now provides:
“The court may require parties to claim or waive physician-patient and hospital-patient privilege in fixing the scope of the examination and a claim of privilegе at the pretrial hearing excludes such testimony if offered later in the trial.”
Our conclusion being that defendants аre entitled to a new trial for the reason hereinbefore stated, we need not consider the questions оf excessiveness of the verdict and whether it is against the great weight of the evidence.
Reversed and remanded for new trial, with costs, to defendants.