spondent cites the following South Carolina cases: Smith Bros. v. Brabham, 48 S. C. 337, 26 S. E. 651; Hyland v. Southern Bell Teleph. & Teleg. Co. 70 S. C. 315, 49 S. E. 879; Smith v. Union-Buffalo Mills Co. 100 S. C. 115, 84 S. E. 422; Cleckley v. Atlantic Coast Line R. Co. 105 S. C. 423, 90 S. E. 32. In the Brabham Case the testimony complained of was brought out by the appellant on his cross-examination of one of the plaintiffs, it not appearing that the witness had given the same or similar testimony on direct examination. The testimony, therefore, was unquestionably the appellant's testimony, and the court rightly held that he could not be heard to complain of the admission of testimony which he had himself brought out in the first instance. In the Hyland Case the court held that certain objectionable testimony was made competent by being admitted without objection. In the Union Buffalo Mills Co. Case the court overruled the appellant's exception to the admission of certain testimony on the ground that "other witnesses, in response to questions of appellant, testified in reference to the same matters.' (Italics added.) In the Cleckley Case the testimony, on defendant's objection, was ruled out on direct examination, but was afterwards brought out by the defendant himself on cross-examination. The testimony was clearly defendant's and the court overruled his objection based on its admission. A mere superficial examination of these cases shows that in no one of them was the same question raised or ruled upon as in the case at bar. It must be borne in mind that in the case at bar the appellant brought out (1) on cross-examination (2) of the same witness only who had testified to the same facts on direct examination (3) only the same testimony that had been brought out over his objection on direct examination.

The defendant in this case offered as witnesses two Columbia physicians to testify to his reputation as a physician. The appellant strenuous

ly objected to this testimony, but the court overruled his objection and admitted the testimony. The appellant having done all in his power, by proper and timely objection, to exclude the objectionable testimony, elicited on cross-examination of the same witness a repetition of the same testimony that had been given on direct examination. Without making the testimony elicited the testimony of the cross-examining party, cross-examination may serve a number of useful purposes in the trial of a case, such as, for instance, testing the credibility of the witness or combating the effect of the testimony upon the minds of the jury. And we are unable to see why a litigant who has duly objected to the admission of incompetent testimony should be required to choose between foregoing the opportunity to accomplish such legitimate purposes through cross-examination of the testifying witness and waiving his right of appeal based on the court's error in admitting the testimony.

examination.

The appellant's cross-examination of the witness in the case at bar coming clearly within the limits of strict cross-examination as herein set forth, we hold Appeal-curing that she did not error by crosswaive thereby her right to have her objection to the admission of the incompetent testimony reviewed on appeal. This holding is not in conflict with any rule laid down by this court heretofore, and is supported by the great weight of authority.

In 2 Enc. Pl. & Pr. 523, it is said: "Where an exception is duly taken to the admission of illegal evidence it is not waived by cross examining the witness with respect to it."

In Abbott, Civil Jury Trials, 3d ed. p. 323, we find the rule as to the waiver of objections stated thus: "After evidence has been admitted over the objection of a party it is necessary that he maintain his hostile position toward it, for otherwise he will waive his objection. If he make the evidence admitted in the face of his objection his own by in

troducing the same evidence, either on cross examination or as part of his own case, he will be deemed to have waived his objection to the admission of the evidence. Nevertheless, these rules do not prevent his cross examining the witness upon the evidence admitted over his objection or preclude the introduction of similar evidence on his own part to meet the case made by the evidence given by his adversary, to which he objected."

In Barker v. St. Louis, I. M. & S. R. Co. 126 Mo. 143, 26 L.R.A. 843, 47 Am. St. Rep. 646, 28 S. W. 866, the court, commenting on certain objectionable testimony, admitted over the objection of the appellant, and about which the defendant's counsel cross-examined the witness, said: "Nor can it matter, in the result, that the defendant's counsel, on cross-examination, asked the witness to repeat his account of the interview with the conductor. That course did not amount to a waiver of the right to urge the exception already saved to the ruling of the court in admitting that interview. Counsel might properly conform to that ruling for the purposes of the trial, without thereby waiving the right to review the admission of incompetent evidence that had come in, over his objection. After that evidence was before the jury, he might then combat it, or meet it, as best he might, without waiving the exception already taken."

In Feuchtwanger v. Manitowoc Malting Co. 109 C. C. A. 461, 187 Fed. 713, we find: "But we do not countenance the contention that an exception to the admission of incompetent evidence is waived because the wronged party endeavors to break its force by cross-examination. So the party would be doubly wronged."

In Kinkelstein v. Keene Electric R. Co. 75 N. H. 303, 73 Atl. 705, the court held: "The plaintiff's crossexamination of the defendant's motorman, who had testified that the report stated the truth, as to his recollection of the report, did not

amount to a waiver of the exception to its admission. The witness' credibility was properly tested in this way after the report had been admitted as evidence before the jury. Clearly, there was no waiver of the exception."

In Marsh v. Snyder, 14 Neb. 237, 15 N. W. 341, the court said: "Another point made on behalf of the defendant is that, although the testimony was inadmissible, the error of admitting it was cured by the cross-examination of the witness respecting it.. Where an exception is duly taken to the admission of illegal testimony, it is not waived by a mere cross-examination of the witness respecting it."

McIlvaine v. First Nat. Bank, 33 S. D. 389, 146 N. W. 574, was a case for damages alleged to have been suffered by the plaintiffs through the conspiracy of certain of the defendants, in an attempt to defraud the plaintiffs of their interest in certain cordwood in which the plaintiffs owned an interest. On the trial of the case, certain objectionable testimony was admitted by the court over the objection of the defendants. Afterwards, the defendants crossexamined the witness in reference to the same matter. On appeal to the Supreme Court, it was contended that the defendants, by cross-examining the witness of the plaintiffs along the same line, waived their objections to the admissibility of the testimony. The court after reviewing the rule of law as laid down in Abbott's Civil Jury Trials, at page 322, said: "It is certainly unreasonable to say that a party must forego cross-examination of a witness or else lose the benefit of a valid objection to a wrong ruling of a court"-citing cases.

In United R. & Electric Co. v. Corbin, 109 Md. 442, 72 Atl. 606, it appears that Corbin had received injury through contact with an electric wire which the defendant had negligently allowed to fall down upon the street. During the trial certain objectionable testimony was admitted, over the objection of the ap

pellant, and was made the basis of an exception on appeal. The appellant cross-examined the same witness with respect to the testimony admitted over its objection. It was contended by the appellee that the appellant, by such cross-examination, waived its objection to the admission of the testimony in question. The court on this point said: "When testimony has been admitted and an exception noted, counsel may deem it necessary to cross-examine the witness on the subject; and, if it is simply a cross-examination, he ought not to be deprived of his exception, provided the record shows he does not intend thereby to waive it, and that ought to be inferred when it is strictly cross-examination. There is perhaps some confusion in the cases on this subject, but

the rule ought not to be carried to the extent of placing an attorney in the position that he must either waive his exception or permit the evidence in chief to stand without cross-examination."

It appearing that the testimony objected to was inadmissible in the first instance, and it not appearing that the appellant waived her objection to the testimony by cross-examination relating thereto, the appellant's first and second exceptions are sustained, and the judgment of the circuit court is reversed and the case remanded to that court for a new trial.

Watts, Cothran, and Blease, JJ., and Ramage, A. A. J., concur.

Gary, Ch. J., did not participate.

Generally speaking, the existence of a fact cannot be proved by reputation or notoriety. 10 R. C. L. 961. There are numerous exceptions to that rule; but it is generally applied in the cases now under consideration.

It is quite generally held that, in an action for malpractice, evidence as to the reputation of a physician or surgeon for skill and care is inadmissible.

Illinois. Holtzman v. Hoy (1886) 19 Ill. App. 459, affirmed in (1886) 118 Ill. 534, 59 Am. Rep. 390, 8 N. E. 832. Kentucky. Alexander v. Menefee (1901) 23 Ky. L. Rep. 1151, 64 S. W. 855.

Montana. Stevenson v. Gelsthorpe (1891) 10 Mont. 563, 27 Pac. 404. New York. Degnan v. Ransom (1894) 83 Hun, 267, 31 N. Y. Supp. 966.

Oregon. Williams v. Poppleton (1869) 3 Or. 139; Engstrom v. Wise Dental Co. (1920) 97 Or. 634, 193 Pac. 187.

Pennsylvania. Mertz v. Detweiler (1845) 8 Watts & S. 376.

South Carolina. GREEN V. SHAW (reported herewith) ante, 243. Texas. Hackler v. Ingram (1917) Tex. Civ. App., 196 S. W. 279. There can be little question of the soundness of this rule as applied to cases where the action is based essentially on negligence, and this view is supported by the great weight of authority.

Thus, in the reported case (GREEN v. SHAW, ante, 243), testimony as to the reputation of the defendant for carefulness was held to be inadmissible in an action for malpractice, where the basis of the suit was certain specific acts alleged to have been negligent, wilful, and wanton. A physician might be ever so skilful or competent in a general way, it is said, or might have an unexcelled reputation, and yet be guilty of the grossest negligence in his treatment of a particular case, and for this he cannot escape the consequences by showing a good general reputation for skill and competency.

And so, in Engstrom v. Wise Dental

Co. (Or.) supra, an action in damages for negligence in extracting a tooth from plaintiff's jaw, it was contended that the trial court erred in rejecting evidence of the professional reputation of the defendant in the community as a dental surgeon. After pointing out that the complaint was based upon negligence in the care and treatment of the plaintiff, and not upon defendant's lack of knowledge or experience in the profession, the court cites 5 Thompson on Negligence, § 6712, where it is said: "Where the physician or surgeon is charged with negligence, and not with incompetency, the matter of his fitness is not an issue, and evidence to show competency and skill is clearly inadmissible," -and holds this to be the law.

In Holtzman v. Hoy (1886) 19 Ill. App. 459, affirmed in (1886) 118 Ill. 534, 59 Am. Rep. 390, 8 N. E. 832, an action against a physician and surgeon to recover damages for want of care, caution, and skill in the treatment of plaintiff's broken leg, evidence of defendant's reputation as a skilful and learned physician and surgeon was rejected. The court said: "There are many reasons . why evidence of this character is not admissible. First, its bearing upon the issue is too remote, and in many, if not in most, cases it would tend to mislead the jury, rather than enlighten them. The veriest quack in the country, by his peculiar methods, not infrequently becomes very famous for the time being in his own locality, so much so that every person in the neighborhood might safely testify to his good reputation. It is true that one's reputation, thus acquired, is generally of short duration. His patrons, sooner or later, must pay the penalty of their credulity by becoming the victims of his ignorance, and with that his good name vanishes. Yet, according to the principle contended for, the quack, in such case, when called to account for his professional ignorance, might successfully intrench himself behind his previous good reputation. Again, one may in many respects be a good practitioner, and deservedly stand well in the neighbor

hood in which he lives, and yet, at the same time, be grossly ignorant about some matters in the line of his profession which would render him liable if, by reason thereof, his patient should be improperly treated, and thereby subjected to loss or injury. In such case, it is manifest, evidence of the defendant's good reputation would be no answer to an action brought for the injury sustained, and its admission would be clearly calculated to mislead the jury."

So, in Stevenson v. Gelsthorpe (1891) 10 Mont. 563, 27 Pac. 404, an action in damages against a physician for malpractice in negligently and unskilfully treating a broken limb, it was held to be error to admit evidence of defendant's reputation as a physician. The court said: "It was his specific acts in the treatment of a certain case, and the fact as to whether his acts were unskilful and negligent in this treatment was the matter in issue. A doctor's reputation for skill and ability will not exonerate him, where gross negligence and want of the application of skill is alleged and proved. Nor can the fact that a doctor is reputed to be negligent or unskilful be allowed as proof to establish negligence or unskilful treatment in a particular case, because he may have treated that case with unusual skill and care."

In an action for malpractice, the complaint alleging negligence and unskilfulness on the part of the defendant in the treatment of the case, the admission of evidence to the effect that the defendant was generally reputed and considered to possess a high degree of skill in his profession is error. In this case the court said: "It is a little difficult to see, on principle, how the general character of the surgeon can ever be material to the inquiry whether he has been guilty of malpractice in a particular case; because it is certain that, though he be the merest pretender to surgical skill, the veriest quack,-yet, if by chance he treats the particular case correctly, he is not guilty of malpractice; and, equally, though he be a master in his profession, yet, if through

neglect to apply his skill in the particular case he treats it improperly, the patient may have his action." Degnan v. Ransom (1894) 83 Hun, 267, 31 N. Y. Supp. 966.

In an early Pennsylvania case, it was held that evidence of general skill in his profession is no defense to an action against a physician for malpractice. Mertz v. Detweiler (1845) 8 Watts & S. (Pa.) 376. The court said: "It was not that [defendant's general skill], but his treatment of the particular case, with which the jury had to do. If the latter was notoriously bad, of what account would be his abstract science, or treatment of other cases? It may be said that his general qualifications might serve to shed light on the propriety of his practice in this particular instance; but it is light which would be less likely to lead to a sound conclusion than to lead astray. The jury, assisted by the opinions of medical witnesses, would be better able to judge of the treatment from the treatment itself than from the more remote consideration of the defendant's professional reputation, which was consequently not the best evidence of which the case was susceptible."

Nor is the reputation of the institution where the defendant received his professional training admissible in defense of an action for negligent and unskilful treatment. "Whatever that reputation might be," said the court, "the individual student might possess more or less skill than others. The proficiency that one makes in the pursuit of science must depend mainly upon personal exertion and talent, and cannot be measured with legal accuracy by the reputation of the institution at which his studies may be pursued." Leighton v. Sargent (1855) 31 N. H. 119, 64 Am. Dec. 323.

A modification of the rule hereinbefore stated is noted in one or two cases where the defendant was expressly charged with want of skill. These decisions take the view that the specific charge put in issue the ques

tion of defendant's possession of or want of skill and care, and his reputation in his profession as to this was a proper subject of inquiry.

Thus, in Vanhooser v. Berghoff (1886) 90 Mo. 487, 3 S. W. 72, where the defendant was charged both with a want of skill and with neglect in the treatment of the plaintiff, it was held that it was competent to prove by experts personally acquainted with. the defendant whether he was or was not a skilful surgeon, and evidence of his reputation as such was admissible. The admission of similar evidence as to the skill and reputation of an expert witness for the plaintiff, in order to strengthen his diagnosis of the case and give value to the opinions of other experts based thereon, rendered it all the more proper and necessary that the same proof as to the skill of defendant, in considering his diagnosis. and treatment of the case, should have been submitted to the jury.

And in Shaw v. Klein (1919) 121 Miss. 411, 83 So. 620, it was held that, where a declaration in an action against a physician and surgeon for negligence in the performance of an operation expressly charges a want of skill and care in the defendant, the testimony of several practitioners that he is a careful and skilful surgeon is admissible. The court expressly refrained from a consideration of what the result would have been if there were no such allegation as the one referred to in the declaration, but emphasized the fact that this allegation put the defendant's possession of skill and care directly in issue.

In Grannis v. Branden (1812) 5 Day (Conn.) 260, 5 Am. Dec. 143, which was an action for malpractice, evidence of the defendant's general professional character had been admitted, and the court, without passing on the question whether or not such admission was proper, decided that it was competent for the plaintiff to show, for the purpose of rebutting such evidence, that the defendant had not been regularly bred in his profession. P. U. G.