On August 26, 1958, аt about 7:30 in the evening the plaintiffs in these cases entered the store of the defendants at the intersection of James Couzens and Meyers road in the city of Detroit for the purpose of making purchases therein. While waiting to check out, an employee of defendants threw or tossed a head of cabbage weighing between 3 and '5 pounds in the direction of another employee. The precise purpose of such action is not material in the instant case. The cabbage struck Mrs. Lindsay on the head, knocking her to the floor and causing her to become unconscious for several minutes. Et’is the claim of the plaintiffs that the blow resulted in serious injuries. Mrs. Lindsay insti *3 tuted an action at law to recover damages for pain and suffering and for loss of income during the' time that she was incapacitated, as it is claimed,, because of her injuries. Her husband also sued to recover for expenses incurred by him because of the injuries sustained by Mrs. Lindsay, and for loss of her services in the home. The cases were tried before_ a -jury which returnеd a verdict of $10,500 in favor of -Mrs. Lindsay and $4,500 in favor of the other .plaintiff. Judgments were entered in accordance with the verdicts.
Prior to the institution of the actions for damages the attorney for the plaintiffs referred Mrs; Lindsay to Dr. John G-. Slevin for the purpose of an examination and a report thereon. There was.no instruction or request for treatment or for advice with reference thereto. The doctor was merely requested to make his examination, with a diagnosis from his’ findings, and submit a written report to counsel to assist the latter in preparing the pleadings in the contemplated litigation and, inferentially, in presenting the causеs of action of his clients on the’ trials thereof.
The cases brought by Mr. and Mrs. Lindsay were consolidated for trial before a jury. Counsel for defendants subpoenaed Dr. Slevin as a witness in their behalf,-claiming the-right to examine him with reference to his findings, and presumably his report to counsel for plaintiffs. Objection was made on behalf of plaintiffs, it being asserted that the findings of the physician under the circumstances, and in view of the purрose of the examination, should be excluded as a privileged communication between physician and patient, or as such between attorney and client. The trial judge sustained the objection. Dr. Slevin was, however, permitted to testify as an expert witness and to answer certain hypothetical questions' not connected in any way *4 with the examination that he had made of Mrs. Lindsay and the report to her counsel. Defendants have appealed from the judgments entered, asserting that the trial court was in error in holding that the results of the examination made by Dr. Slevin were privileged for either of the reasons urged in supрort of the objection by plaintiffs’ counsel.
Counsel for appellants state the questions involved on this appeal as follows:
“1. Did the trial court err in ruling that the testimony of an examining physician as to his findings on exаmination of the plaintiff prior to the institution of these actions for the purpose of assisting plaintiffs’ counsel in the preparation and evaluation of the case should be excluded as a privileged communication between physician and patient?
“2. Did the trial court err in ruling that the testimony of an examining physician as to his findings on examination of the plaintiff prior to the institution of these actions for the purрose of assisting' plaintiffs’ counsel in the preparation and evaluation of the case should be excluded as a privileged communication between attorney and client?”
The privilege attending thе relation of physician and patient is set forth in CL 1948, § 617.62 (Stat Ann § 27.911), which reads as follows:
“No person duly authorized to practice medicine- or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his 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 surgеon: Provided, however, That in case such patient shall bring an action against any defendant to recover for any personal injuries, or for any malpractice, if such plaintiff shall produce any physiсian as a witness in his own belialf, who-has treated him for such injury, or for any disease- *5 or condition, with reference to which such malpractice is alleged, he shall be deemed to have waived the privilege hereinbefore provided for, as to any or all other physicians, who may have treated him for such injuries, disease or condition: Provided further, That after the decease of such patient, in a contest uрon the question of admitting the will of such patient to probate, the heirs at law of such patient, whether proponents or contestants of his will, shall be deemed to be personal representatives оf such deceased patient for the purpose of waiving the privilege hereinbefore created.”
The language of the statute may not be extended beyond its plain terms. In the instant case the physiсian did not attend Mrs. Lindsay for the purpose of treating her or advising as to treatment. The information that he obtained was designed for the benefit of the attorney at whose request the examination was made. It оbviously was not contemplated that Dr. Slevin should perform any act as a surgeon or that he should in any respect assume the role of a physician called to treat a patient or prescribe therefor. The conceded facts in the instant case indicate conclusively that the statutory privilege is not applicable.
This brings us to the query whether under the situation presented the common-law rule as tо privileged communications between attorney and client applies here. This Court has in prior decisions been inclined for obvious reasons to give a somewhat liberal interpretation to said rule.
People
v.
Pratt,
In the State of California the privilege arising from the relation of physician and patient is declared by statute, comparable in form аnd substance to the Michigan rule above quoted. The privilege attending the relation of attorney and client is likewise dependent on statutory provisions, but it appears that the rule as so declared is analogous to the common-law rule recognized in Michigan. In
City and County of San Francisco
v.
Superior Court of the City and County of San Francisco,
37 Cal 2d 227 (
“Had Hession [the client] himself described his condition to his attorneys there could be no doubt that the communication would be privileged and that neither the attorney nor Hession could be compelled to reveal it, even though a client is not listed in section 1881 (2) among those who cannot be examined. (Citing cases.) It is no less the client’s communication to the attorney when it is given by the client to an agent for transmission to the attorney, and it is immaterial whether the agent is the agent of the attorney, the client, or both. ‘The client’s freedom of communication requires a liberty of employing other means than his own personal action. The privilege of confidence would be a vain one unless its exercise could be thus dеlegated. A communication, then, by any form of agency employed or set in motion by the client is within the privilege.
“ ‘This of course includes communications through an. interpreter, and also communications through a messenger or any other agent of transmission, as well as communications originating with the client’s agent and made to the attorney. It follows, too, that the communications of the attorney’s agent to -the attorney are within the privilege, bеcause the attorney’s agent is also the client’s subagent and is acting as such for the client.’ (Citing cases.) .Thus, when-communication by a client to his attorney *8 regarding Ms physical or mental condition requires-the assistance of a physician to interpret the client’s condition to the attorney, the client may submit to-an examination by the physician without fear that the latter will be compelled to reveal the information disclosed.”
The above ease was referred to by this Court in.
In re Dalton
Estate,
Judgments affirmed, with costs to appellees.