Toops v. State, 92 Ind. 13. Townsend v. VanBuskirk, 68 N. Y. Supp. 512. 239 546 Ukman v. Daily Record, 189 Mo. 378..... United Shoe Machinery Co. v. Ramlose, 210 Mo. 631 V. Vai v. Weld, 17 Mo. 232.. Vanata v. Johnson, 170 Mo. 269. Vantine v. Butler, 240 Mo. 521.. Voegeli v. Marble Co., 49 Mo. App. 653. W. .152, 154 733 735 567 .287, 288 .449, 450 484 660 Wabash Railroad Co. v. Flannigan, 218 Mo. 569.. Wade v. Emerson, 17 Mo. 267... Warehouse Co. v. Railroad, 124 Mo. App. 545.. Westerman v. Supreme Lodge K. of P., 196 Mo. 670. 1. APPEAL: Jurisdiction: Transfer from Court of Appeals: Conflict in Decisions. The Constitution says that "when any one of said courts of appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said courts of appeals" the cause shall be transferred to the Supreme Court; and that means that it is wholly immaterial whether or not such conflict does in fact exist, if one of the judges of the Court of Appeals deems it to exist. Wherever one of the judges believes a conflict exists between a decision rendered in a case properly appealed to the Court of Appeals and a decision rendered by another Court of Appeals, it is the duty of the Court of Appeals to transfer the case to the Supreme Court, and after such transfer the Supreme Court has jurisdiction. 2. WITNESS: Competency: Physician. Under the statute (Sec. 6362, R. S. 1909), a physician cannot, over the patient's objection, testify as to any information he obtained while attending (1) 250 Mo.] Epstein v. Railroad. the patient in a professional capacity. His disqualification is not dependent upon the existence, either express or implied, of a contractual relation for hire, but arises wherever, from the nature of the services intended or rendered, the relation of physician and servant existed. The rule applies to physicians who, after passengers were injured by train collisions and were taken to a city hospital, were present solely to aid in a great calamity for humane reasons and voluntarily proffered their professional services to the injured plaintiff. 3. 162.] Waiver: By Patient's Testimony. The patient may waive the disqualification of his physician to testify; and this he may do by himself voluntarily giving in evidence the facts and nature of his ills and the communications had with and acts done by his physician while treating him. And where his physician was called by and testified for defendant, fully and in detail, to his conversations with and treatment of plaintiff, without objection, and where he himself voluntarily laid bare all the secrets of the sick-room, and told the precise nature of his alleged injuries as he said the said physician found them and the treatment given, plaintiff thereby waived the incompetency of other physicians also present in the sick-room at the time of such conversations and treatment and having knowledge of them. [Distinguishing and modifying Smart v. Kansas City, 208 Mo. Held, by LAMM, C. J., concurring, with whom GRAVES and BROWN, JJ., concur, that if a litigant uses a physician as a witness he does not thereby, without more, waive his statutory privilege to prevent other physicians he has had at other times and on other occasions from breaking the seal of professional secrecy. Nor does the patient, who says or does nothing of substance to lift the statutory veil of secrecy imposed on sick-room disclosures to his physician, waive the privilege even as to such physician. But if waived by word, conduct or act for the time, place or occasion in hand, the waiver must be held to operate to an extent limited only by logic and wisdom. No general rule can be laid down to be applied in every case. The extent of the waiver, or whether there has been a waiver at all, must depend upon the facts of the concrete case. Held, by WOODSON, J., dissenting, first, that by one statute plaintiff was given the absolute legal right to testify, and by another the same right to prevent the voluntary physicians from testifying, and the mere exercise of the former did not destroy the latter; second, that plaintiff, by not objecting to one physician, called by defendant, testifying, did not waive his right to object to two other physicians, also called by defendant; and, third, if he lifts the veil as to all by using his own physician as a witness, or by not Epstein v. Railroad. objecting to his testifying when called by defendant, or by detailing the extent of his injuries as learned from his own physician or the one to whom he does not object, the defendant, who has caused his injuries, is thereby given the right to impose upon plaintiff a horde of physicians and nurses of its own choosing, in a hospital of its own choosing, who are present and assisting at the hospital to which he has been taken by defendant, when he is examined by his own physician or one to whom he does not object, and to use those physicians and nurses as witnesses, or else he must not himself testify as to the extent of his injuries and thus leave the case without any testimony on the question of the amount of damages. TRANSFERRED FROM ST. LOUIS COURT OF APPEALS. JUDGMENT OF CIRCUIT COURT REVERSED AND CAUSE RE MANDED. Everett W. Pattison for appellant. The court erred in excluding the testimony of the two physicians who assisted Dr. Elston in examining plaintiff and dressing his injuries at Corry Hospital. The plaintiff testified as to what took place at the hospital, going fully into the details. Dr. Phelps and Dr. Christie were present assisting Dr. Elston. The court permitted Dr. Elston to testify, but rejected the testimony of the assisting physicians. When plaintiff removed the seal of secrecy as to the events which occurred at the hospital, he waived his privilege, not only as to Dr. Elston, but also as to the other physicians who were present assisting him. Webb v. Railroad, 89 Mo. App. 610; Highbill v. Railroad, 93 Mo. App. 223; Morris v. Railroad, 148 N. Y. 88, 51 Am. St. 675; Treanor v. Railroad, 16 N. Y. Supp. 538; Marx v. Railroad, 10 N. Y. Supp. 159; People v. Schuyler, 106 N. Y. 306; Lane v. Boicourt, 128 Ind. 420, 25 Am. St. 442. There is a marked distinction between the case at bar and that of Mellor v. Railroad, 105 Mo. 455, in this respect: In the Mellor case the two physi |