Thompson v. Ish

• Citation: 12 S.W. 510,99 Mo. 160
• Parties: Thompson et al., Appellants, v. Ish et al
• Decision Date: 02 December 1889
• Court: United States State Supreme Court of Missouri

12 S.W. 510

99 Mo. 160

Thompson et al., Appellants, v. Ish et al

Supreme Court of Missouri

December 2, 1889

Appeal from Ray Circuit Court. -- Hon. Geo. W. Dunn, Judge.

Affirmed.

R. A DeBolt and Wallace & Chiles for appellants.

(1) The lower court erred in remarking from the bench, while deciding upon the objections of plaintiffs to the competency of the question asked by James D. Ish, by his attorneys, to Dr Henderson, his witness, as to the reputation and standing of Dr. Joseph M. Wood as a physician and surgeon, whose deposition, taken by said James D. Ish, was on file in this cause, that "Dr. Wood's character and standing, as an eminent physician, was part of the history of Missouri and, if the courts and juries took notice of the facts of history, the evidence was immaterial." This evidence was offered and the remark of the court made before Dr. Wood's deposition was offered, and his reputation had not been attacked. Naughton v. Stagg, 4 Mo.App. 274-276; State v. Cooper, 71 Mo. 436; State v. Thomas, 78 Mo. 327. (2) The circuit court erred in admitting in evidence the statement of Mrs. Martha M. Ish, at the time of making an alleged former will in April, 1882, at the City Hotel in Lexington, to the effect she wanted "Don" to have her land, except forty acres which she might want to use. (3) The circuit court erred in allowing the witness Rathbun to state the provisions and contents of an alleged paper made in April, 1882, as the contents of a will. (4) The court erred in admitting in evidence statements of James D. Ish as to what he thought the property his sisters acquired from their husbands was worth. (5) The court erred in admitting those portions of the deposition of Dr. J. M. Wood, Dr. Wood was incompetent to testify to facts and information acquired by him as the physician and surgeon of Mrs. Martha Ish, or by consultation with Dr. Henderson, her family physician, and especially facts having reference to the condition and soundness or unsoundness of the mind of Mrs. Martha Ish at the time of his visit to her as such physician and surgeon. The inhibition or veil of privilege, or secrecy, imposed by the statute, applies to information acquired by a physician from inspection, examination or observation of the person of the patient, as well as to information acquired by oral communications; and would even apply to information acquired in a consultation with the family physician of the patient. Gartside v. Ins. Co., 76 Mo. 466 and cas. cit.; Briggs v. Briggs, 20 Mich. 34; Groll v. Tower, 12 Mo.App. 585; Norton v. Moberly, 18 Mo.App. 457. And this evidence of Dr. Wood is not admissible under the theory of a waiver of the objections thereto, by the representatives of the patient, recognized in Groll v. Tower, 85 Mo. 253-256, and Carrington v. City of St. Louis, 89 Mo. 216, as, surely, in this case, it cannot be claimed that James Doniphan Ish is the representative of his mother, Martha Ish, as against the other children and grandchildren, eight sets of heirs of Martha Ish. And the administrator, pendente lite, does not and could not waive such objections to the evidence in a suit to contest the validity of the will of deceased. Plaintiffs, as the children and grandchildren of Martha Ish, certainly had the right to object to the evidence of Dr. Wood. Edington v. Ins. Co., 67 N.Y. 194-196; 1 Greenl. Ev. [4 Ed.] secs. 236, 237, 238, 243. (6) The court erred in overruling plaintiffs' objections to defendant James D. Ish being permitted by the court, in rebuttal, to recall Sawney Brown, colored, as plaintiffs' witness, for the purpose of asking him an impeaching question after such witness had been examined and discharged nearly a week before, and had been home and returned, and was no longer plaintiffs' witness and might have been tampered with by the other side; and in permitting said Sawney Brown to answer such question. (7) The circuit court erred in allowing the witness Rathbun to testify to the fact that "Mrs. Ish was known to the community as a strong-minded woman." (8) The court below erred in overruling plaintiffs' objections to the question propounded, by defendant James D. Ish, to Dr. John B. Alexander, his medical witness, viz.: "State your opinion of the qualifications of Dr. Henderson as a physician?" and in permitting said Alexander to answer such question, as well as in overruling plaintiffs' objections to the answer. One expert witness cannot prove the "qualifications" of another expert. This evidence was a make-shift, a make-weight. Washington v. Cole, 6 Ala. 213; Tullis v. Kidd, 12 Ala. 648; Singleton v. Sargent, 31 N.H. 109; Brabo v. Martin, 5 Miller, 275; Lawson on Expert Ev., pp. 130, 138, 139, 140; Newmarket v. Insurance Co., 30 Mo. 165; Dickey v. Maliche, 6 Mo. 177. (9) The instructions for defendant are erroneous. (a) The definition of soundness of mind there given is imperfect and erroneous. (b) It tells the jury that, on the facts therein hypothecated, deceased, Martha Ish, as a matter of law "was of sound mind" instead of leaving to the jury to find as a fact from the evidence that she was of sound mind. (c) It is argumentative, it hypothecates an imperfect definition of testamentary capacity, and, arguendo, tells the jury, therefore, she, Mrs. Ish, was of sound mind. (d) It in effect ignores the question of "undue influence" by failing to define the same and requiring the jury to look through a number of mixed and erroneous subsequent instructions for "undue influence as afterward defined," no one of which subsequent instructions of defendant James D. Ish contains a correct or intelligible definition of what constitutes in law "undue influence" in the making of a will, but contains imperfect, inconsistent and misleading definitions thereof. (10) The court below erred in refusing the instruction number 20 asked by plaintiffs. This instruction is clear law, not covered by any other instruction given, and was especially important in view of the uses made by defendant James D. Ish of this will made in April, 1882, a year before the making of the will in controversy, to supply want of mind and recollection of her property, children and grandchildren of the testatrix in making this new will. R. S. 1879, sec. 3962. Manifestly the statute means that the witnesses shall subscribe their names at the request of the person making the will. Miltenberger v. Miltenberger, 78 Mo. 29; Odenwalder v. Schoor, 8 Mo.App. 458; Elliott v. Welby, 13 Mo.App. 19; St. Louis Hospital Ass'n v. Williams, 19 Mo. 609; Northcutt v. Northcutt, 20 Mo. 266; Catlett v. Catlett, 55 Mo. 330; Woolly v. Woolly, 95 N.Y. 231; Mitchell v. Mitchell, 77 N.Y. 77.

J. D. Shewalter for respondents.

(1) On the contest of a will, evidence of the declarations and statements of the testatrix as to her intentions and purposes in the disposition of her property are competent, as showing the condition of her mind and the state of her affections. Gibson v. Gibson, 24 Mo. 227; Twigley v Cowgill, 48 Mo. 291; Rule v. Maupin, 84 Mo. 587. (2) On the trial of the issue of will or no will, where want of mental capacity and undue influence is alleged, evidence of a former will, and its provisions, are admissible as evidence of the intentions and purposes of the party at that time. Muller v. Hospital Ass'n, 73 Mo. 242; Thomas v. Stump, 62 Mo. 278. (3) All the circumstances surrounding the deceased and the parties, at the time of the execution of the paper, is competent; hence, evidence of the financial condition of those who, but for the will, would be the heirs is admissible; such evidence tends to rebut any presumption arising from the unequal distribution. Nor was there error in admitting the evidence of J. D. Ish thereon. The fact was amply proved by other evidence, including the parties. And the Daniels, whose statements are objected to, are parties, and their statements as to their financial condition is evidence as to them. (4) Having introduced Sawney Brown, plaintiffs stood sponsors for him; it was proper, under repeated decisions, to recall him for the purpose of impeachment, and plaintiffs' ground of objection, "that he might have been tampered with by the other side," is hardly admissible, except as an admission that they introduced a witness susceptible of being "tampered with," and he the principal witness for plaintiffs. (5) Plaintiffs having attacked the standing of Dr. Henderson as a physician, and shown he had no diploma, it was competent to show Dr. Henderson's standing and qualifications as a physician. Hence there was no error in showing by Dr. Alexander that Dr. Henderson was "above the average of physicians in Missouri." (6) In this case two subscribing witnesses to both papers prove the soundness of mind. (7) Defendants having offered to prove the competency of Dr. Wood to form an opinion as to the soundness of mind of a patient (Dr. Wood having, through modesty, declined to answer that question, though stating the length and extent of his practice) the same was objected to by plaintiffs as incompetent and irrelevant; and, because Dr. Wood as a physician had not been attacked, objections were sustained, and appellants cannot complain of the words used (if used) in deciding in their favor. Besides, as one ground of objection was that Dr. Wood had not been attacked as a physician, the presumption is in his favor, and the court could not strengthen or give additional weight to this legal presumption. (8) Where the evidence is conflicting, experts, though they have heard all the evidence, cannot give an opinion "on the facts shown by the evidence," (for what facts are shown must be decided by the jury, not the witness) but the questions must be hypothetically put. (9) There was no error in giving or refusing instructions; a sound mind is a mind...