titled to reimbursement under the statute, even though he at times did work embraced within the statue." Gleisner v. Gross & Herbener, 170 App. Div. 41, 155 N. Y. Supp. 946, 949; De Voe v. New York Sate Ry., 169 App. Div. 472, 155 N. Y. Supp. 12.

[5] Appellee contends we ought to ignore paragraph 3155 as though it were not written in our laws, and especially would he have us ignore the provision therein that limits the benefits of the act to employees doing manual and mechanical labor; for, he says, the constitutional direction to the Legislature was to enact a law granting the right of action to every employee without restriction other than that his occupation be hazardous and in one of the industries mentioned. Without so deciding we may suggest that the Constitution itself in spirit and by implication, if not in terms, by providing that the benefits shall be made to extend only to those employees engaged in hazardous occupations in the businesses or industries mentioned, placed the limitation contained in the law and of which complaint is made. For is it not a fact that the hazardous occupations in the industries of mining, smelting, manufacturing, and railroad transportation are all of the kind requiring manual or mechanical labor? But, aside from this suggestion, it is the statute law and not the Constitution that gives the right of action. Section 7, art. 18, of the Constitution, is not selfexecuting, and the principle therein contained can be appropriated and applied only in so far as the Legislature provides for it. Insp. Cons. Copper Co. v. Mendez, 19 Ariz. 151, 166 Pac. 278, 1183; 12 C. J. 730, 739, 741. [6-8] The delition of paragraph 3155, or any part thereof, as appellee asks, would be to disregard one of the cardinals rules of construction stated by Judge Cooley, as follows:

"That effect is to be given, if possible, to the whole instrument and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if possible, and must lean in favor of a construction which will render every word operative rather than one which may make some words idle and nugatory.' Cooley's Const. Lim. (5th Ed.) p. 70.

But it is said by appellee that this court in Deyo v. Ariz. Grading Co., 18 Ariz. 149, 157 Pac. 371, L. R. A. 1916E, 1257, decided that the Legislature, in limiting the benefits of the Employers' Liability Act to employees doing manual and mechanical labor, acted without power. What we said in that regard was not necessary to a decision of the case, and shows upon its face that it was not intended as a statement of the law. It was submitted more as a query. We said:

"Whether the Legislature exceeded its authority and power in restricting the beneficiaries of the law to those engaged in manual and mechanical labor only, we do not deem it necessary to determine under the facts of this case. That question was not presented in argument by counsel; but it appears to be within the reason of the rule laid down by this court in Behringer v. Insp. Cons. Copper Co., 17 Ariz. 232, 149 Pac. 1065, in which we held that the Legislature did not possess the power to enlarge the mandate of the Constitution as to the Workmen's Compulsory Compensation Law."

Anything said in that regard in the Deyo Case was tentative, and, upon reflection, we conclude unsupported by reason. If we had said, instead of what we did say, that it was the duty of the Legislature to observe the mandate of the Constitution and make its legislation conform thereto, our statement would have been more in place and more correct in principle. While the Legislature may not extend the constitutional provision so as to include subjects not within its purview or that conflict with it (Behringer v. Insp. Cons. Copper Co., supra), it is well settled that the lawmaking body may or may not, as it chooses, pass laws putting into effect a constitutional provision, and if, in its efforts to give effect to a constitutional provision, the statute is not broad and comprehensive enough to cover all subjects that it might, we know of no reason why it should not be valid as far as it goes. So it is that, if other employees

than those doing manual and mechanical labor might, under the Constitution, be granted the benefits of the act, it is the duty of the Legislature to so provide, and, until it does so, the beneficiaries are limited to those mentioned in the statute.

[9] Inasmuch as the judgment will have to be reversed and the case remanded to the trial court, there is a question involving the introduction of evidence that we feel should be settled at this time. Appellant offered as witnesses two physicians who rendered professional services to appellee, and wanted to prove by them what they discovered or learned of his condition, insisting that appellee had raised the ban of secrecy because in a previous trial he had examined one of the witnesses in regard to the same subject-matter and had permitted the other to testify without objection. This offered testimony, upon objection that it was confidential, was rejected. This ruling is assigned as error. Our statute (subdivision 6, par. 1677, Civil Code) in regard to the privileged character of information contained in his professional capacity by a physician or surgeon, from or of his patient, is peculiar, and, for that reason, the decisions of courts under statutes whose language is not the same, but widely different, would not greatly aid us in a construction of ours.

In Arizona & New Mexico Ry. Co. v. Clark, 235 U. S. 669, 35 Sup. Ct. 210, 59 L. Ed. 415, L. R. A. 1915C, 834, it is said:

"The express object [of subdivision 6, supra] is to exclude the physician's testimony, at the patient's option, respecting knowledge gained at the bedside, in view of the very delicate and confidential nature of the relation between the parties."

And "it contemplates that the patient may testify with reference to what was communicated by him to the physician, and in that event only it permits the physician to testify without the patient's consent."

It is further said:

"The act gives him [patient] the option of excluding the physician's evidence entirely by himself refraining from testifying voluntarily as to that respecting which alone their knowledge is equal, namely, what the patient told the physician with reference to the ailment."

If the record shows that appellee, in the former trial or in the present one testified voluntarily as to what he "told the physician with reference to his ailment," it has not been pointed out to us. It seems, under the statute and the construction given it in the Clark Case, the patient can object to the physician testifying as to what he may have learned in his professional capacity unless the patient has himself "testified to the communications he made to the physician." It not appearing that appellee testified to any communication made by him to the physicians, he did not waive his right to object to their testifying at the second trial, even though they did at some previous trial testify as to knowledge obtained by personal examination.

In Dahlquist v. Denver & R. G. R. Co. (Utah) 174 Pac. 833, reading at page 845, the Supreme Court of Utah, speaking of the Clark Case, said:

"Just how the appellant in that case, under the plain words of the statute and the testimony of the plaintiff, could assume that the plaintiff, who had not testified to any communication made to his physician, had waived his privilege, is beyond our comprehension. The statute mentions one instance in which the patient's consent may be implied, namely, where he voluntarily testifies with reference to communications to his physician. By construction all others are excluded. Expressio unius est exclusio alterius."

Even if we questioned the correctness of the construction placed upon our statute, we would be inclined to defer our judgment to that of the highest federal court for the sake of uniformity in the administration of the law in this state.

"We think the sounder view is that the mere fact that testimony has been given at a former trial does not necessarily constitute a waiver which is irrevocable at a subsequent trial of the cause. In this view of the matter, we are influenced not only by what seems to us to be the better reason, but by the well-considered opinions of other courts. Briesenmeister v. Supreme Lodge Knights of Pythias, 81 Mich. 525, 45 N. W. 977; Burgess v. Sims Drug Co., 114 Iowa, 275, 86 N. W. 307, 54 L. R. A. 364, 89 Am. St. Rep. 359.

"In the Iowa Case cited above, Mr. Justice McClain, speaking for the court, said:

“As to the testimony at the former trial, it seems to us that the waiver resulting therefrom should be confined to the trial in which the waiver is made. Our statute relates to the giving of testimony, not to the publication in general of the privileged matter, and it seems to us clear that any waiver resulting from the giving or introduction of testimony on a trial should be limited to that trial.'

"In the same case, the court, in declining to follow the New York cases, said:

"We do not agree to the reasoning in that case, which would seem to lead to the result that, if the privileged communication is in any way made public by the patient, the privilege is waived for all time; whereas, we understand to be well settled that a communication to a third person by the patient or client will not be a waiver of the right to insist on the privilege when it is sought to have the disclosure made by the way of testimony in open court.'

Md. Casualty Co. v. Maloney, 119 Ark. 434, 178 S. W. 387-389, L. R. A. 1916A, 519.

The instructions given to the jury are the ordinary instructions given in personal injury cases arising under the common law-as to negligence, contributory negligence, assumed risk, and safe place to work-and we would feel constrained to affirm the judgment but for the fact that, commingled with those instructions, are others submitting the issues under the Employers Liability Act. These last instructions, under the pleadings and the evidence, should not have been given.

There are other assignments of error; but, as they do not go to the merits of the case and are not likely to occur upon another trial, we will not notice them.

The judgment is reversed, and case remanded, with directions that further proceedings be had in accordance herewith.

Cunningham, C. J., and Baker, J., concur.

DISTRICT COURT OF APPEAL OF CALIFORNIA.
FIRST DISTRICT, DIVISION 2.

HALL
V.

SOUTHERN PAC. CO. ET AL. (Civ. 2705.)*

1. PARTIES-PARTIES INTERESTED IN ACTION AGAINST PARTY CAUSING INJURY TO SERVANT RECEIVING AWARD UNDER COMPENSATION ACT.

An injured employee, having made a claim and received an award under the Workmen's Compensation Act, may, in view of section 31 thereof and Code Civ. Proc. § 378, be joined as a party plaintiff, he having an interest, with his employer, or the latter's insurance carrier, in a suit against a third party whose tort has caused the injury.

(For other cases, see Parties, Dec. Dig. § 6[2].)

2. PARTIES-JOINDER-ACTION AGAINST PARTY CAUSING SERVANT'S INJURY-MAKING MASTER DEFENDANT ON REFUSAL TO JOIN AS PLAINTIFF.

Where an employer, after an award under the Workmen's Compensation Act, refuses to join the servant as a party plaintiff against the third party whose tort caused the injury, the servant may maintain the action alone by making the employer one of the defendants, in view of Code Civ. Proc. § 382, providing that, where one should be enjoined as a plaintiff refuses to consent thereto, he may be made a defendant. (For other cases, see Parties, Dec. Dig. § 35.)

Appeal from Superior Court, City and County of San Francisco; John Hunt, Judge.

Action by Betty T. Hall, individually and as guardian ad litem of Frederick William Hall, against the Southern Pacific Company and another. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Keyes & Erskine, of San Francisco, for appellants.

A. L. Clark and Henley C. Booth, both of San Francisco, for respondent Southern Pacific Co.

Edwin T. Cooper and H. K. Eells, both of San Francisco, for respondent Healy-Tibbitts Const. Co.

HAVEN, L. This action was brought to recover damages for the death of Lucius Endicott Hall, Jr., which is alleged to have been caused by the negligence of the defendant Healy-Tibbitts Construction Company. Plaintiffs are the surviving widow and minor child of said deceased. At the time of the accident which caused his death the deceased was employed by the defendant Southern Pacific Company as a pile inspector and construction engineer, and was performing services growing out of and incidental to to such employment. After his death the plaintiffs filed a lawful claim against the defendant Southern Pacific Company for compensation for such death under the provisions of the Workmen's Compensation, Insurance and Safety Act (Stats. 1913, p. 279). Upon * Decision rendered, Feb. 21, 1919. Rehearing denied by Supreme Court April 21, 1919. 180 Pac Rep. 20.

that claim the Industrial Accident Commission made an award in favor of the plaintiffs and against the defendant Southern Pacific Company, requiring payment by that company to plaintiffs of compensation in weekly installments; the total liability of the said defendant upon such award being $5,100. After the making of such award, the plaintiffs requested the defendant Southern Pacific Company to commence an action against the defendant Healy-Tibbitts Construction Company to recover damages for the death of said deceased, with the further request that the excess of any amount which might be recovered in such suit, over the liability of the defendant Southern Pacific Company to plaintiffs under the award, be paid to plaintiffs. The said defendant Southern Pacific Company refused to bring such action, whereupon this action was brought by plaintiffs, and the Southern Pacific Company was joined as a party defendant. The prayer is for judgment for the sum of $50,000 "in favor of the Southern Pacific Company, for the use of the plaintiffs."

[1] To plaintiffs' complaint, alleging substantially the above recited facts, the defendants filed separate demurrers, both of which were sustained. Plaintiffs declining to amend, judgment was entered against, them from which they appeal. The sole question presented is whether or not plaintiffs can maintain this action against a third party, whose negligence is alleged to have caused the death, after having made claim against the employer of the deceased for compensation under the provisions of the Workmen's Compensation Act, and received an award on such claim. The answer to that question depends on the proper construction to be given to section 31 of the act referred to, which, as far as is here material, reads as follows:

"The making of a lawful claim against an employer for compensation under this act for the injury or death of his employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative, or other person, may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce in his own name the legal liability of such other party, but any amount collected by the employer, under the provisions of this section, in excess of the amount paid by the employer, or for which he is liable, shall be held by him for the benefit of the injured employee or other person entitled."

* * *

In the case of Marcel Bassot and Ocean Accident & Guarantee Corporation v. United Railroads of San Francisco, recently decided by division 1 of this court, suit was brought by an injured employee and his employer's insurance carrier jointly against the defendant corporation to recover damages caused by the latter's alleged negligence. The compensation due the employee under the Workmen's Compensation Act had been adjusted and paid by the insurance company; after which both joined as plaintiffs. against the third party whose negligence was alleged to have been the cause of the injuries received. A motion for nonsuit was granted as against the plaintiff employee on the ground that he was improperly joined as a party plaintiff. The case was twice heard in the District Court of Appeal, and in both opinions the granting of such nonsuit was held to have been erroneous. In the decision on rehearing the court, in referring to section 31 of the above act, and adopting the language of the original opinion, says:

"Respondent is correct in its contention that this section operates to transfer the legal title to the claim for damages to the employer or his surety, but it is also true that the employee still retains an equitable interest therein as to any surplus that may be recovered over the amount paid him by the employer, and he is therefore a real party in interest in the litigation. Although section 369 of the Code of Civil Procedure provides that a trustee of an express trust may sue without joining the person for whose benefit the action is prosecuted,' section 378