Baker v. Whittaker, 19294

• Decision Date: 14 May 1962
• Docket Number: No. 19294,No. 2,19294,2
• Parties: Herbert BAKER, Gerald Baker, Milford Baker, R. G. Virgil Baker, Herbert Baker, As Guardian of Mary Baker, R. G. Virgil Baker, As Executor of the Will of Anna Stotler, Deceased, Appellants, v. Basil WHITTAKER and Madge Whittaker, Appellees
• Court: Indiana Appellate Court

Page 442

182 N.E.2d 442

133 Ind.App. 347

Herbert BAKER, Gerald Baker, Milford Baker, R. G. Virgil Baker, Herbert Baker, As Guardian of Mary Baker R. G. Virgil Baker, As Executor of the Will of Anna Stotler Deceased, Appellants, v. Basil WHITTAKER and Madge Whittaker, Appellees.

No. 19294.

Appellate Court of Indiana, Division No. 2.

May 14, 1962.

Victor S. Pfau, Wendell B. Iddings, John F. McCann, Jr., Indianapolis, for appellants.

Russell I. Richardson, Lebanon, Roland Griffin, Sheridan, Stewart & Richardson, Lebanon, of counsel, for appellees.

BIERLY, Judge.

This is an action to set aside and cancel a deed to real estate brought by the sole heirs and devisees of the deceased grantor, Anna Stotler, and the legal representative of said heirs and devisees, the appellants herein, against the appellees, Basil Whittaker and Madge Whittaker, the grantees in said deed.

The issues were formed by appellants' complaint which alleged that the appellees unduly influenced the deceased grantor to convey real estate to the appellees, and the appellees' answer thereto denying plaintiffs' allegations of undue influence.

According to the evidence, on July 6, 1957, just twenty-two (22) days prior to her death, which occurred on July 28, 1957, Anna Stotler deeded to appellees her twenty acre farm. By the terms incorporated in said deed, the grantor, Anna Stotler, retained the right to live in the house on said farm during the remainder of her life. At the time of the conveyance, the grantor was 86 years old, and her life expectancy was 2.47 years. Further provisions in said deed obligated appellees to pay $500,00 on the first day of December of each year to the grantor as long as she may live or until the sum of $5,000.00 was paid to her, whichever occurred first. Said deed further provided that appellees were to pay the funeral expenses at the death of grantor.

The appellees and the grantor, Anna Stotler, were no blood relation. For a period of ten years prior to the conveyance, appellee, Basil Whittaker, had farmed the grantor's land.

On July 4, 1957, Anna Stotler offered to sell her said farm to the appellees. Basil Whittaker stated that he did not have the money to buy at that time. Mrs. Stotler insisted Basil Whittaker go and bring his wife. After having done so, the grantor, Anna Stotler, on July 6, 1957, in the presence of witnesses executed the deed containing the provisions heretofore stated, conveying her real estate to appellees.

Trial was had without the intervention of a jury, and the court stated his findings and rendered judgment consistent therewith.

Appellants moved the court for a new trial therein urging:

'1. That the decision of the Court is contrary to law.

'2. Errors of law occurring at the trial as follows:

'(a) The Court erred in overruling the objections of the Plaintiffs to the competency of Dr. John L. Reck, a physician, called on behalf of the Defendants to testify as to his observations and conversations with Anna Stotler, Deceased, * * * .

'(b) That the Court further erred in overruling the objection of the appellants to questions propounded by the appellees during the cross examination of Basil Whittaker, a witness called on behalf of the appellants, and admitting answer thereto in evidence, * * *.

'(c) And, further the Court erred in overruling the objection of the appellants to appellees' question propounded by appellees during the direct examination of Madge Whittaker, a witness called on behalf of appellees, and in admitting the answer thereto in evidence.'

The court overruled appellants' motion for a new trial. Appellants in this appeal set forth the following assigned error:

'The Court erred in overruling appellants' motion for a new trial.'

It is alleged by appellants in their complaint that on the date the deed in question was executed and for more than six months prior thereto, Anna Stotler, a person of more than 84 years of age was enfeebled both in body and in mind, and by reason thereof, was easily susceptible to the influences, acts and persuasions of others; 'that during said period of time, the Defendants well knowing her weak and enfeebled condition as aforesaid, and corruptly contriving and intending thereby to defraud said Anna Stotler out of her said real estate, made frequent visits to her and by means of continuous, persistent and undue persuasion and importunity and undue, corrupt and overpowering influence exercised by Defendants over and upon said Anna Stotler, so wrought upon the minds and inclinations of said Anna Stotler, that on said day said Defendants procured from said Anna Stotler a deed conveying said real estate to the Defendants.'

Appellants argue that the evidence presented clearly established a presumption of fraud and undue influence. Further, they contend that the evidence establishes that Anna Stotler was senile and was suffering from arteriosclerosis and hypertension; that she lived alone on her farm; that she had little or no formal education and that she was mentally subnormal. Appellants further contend that Basil Whittaker managed the Stotler farm; that on July 4, 1957, at a meeting in her home with Basil Whittaker, Anna Stotler offered to sell her farm to him. No witnesses were present at this time; that Basil Whittaker demurred and Mrs. Stotler requested him to go and bring his wife to her home. This Whittaker did. Contact was made by Whittaker with William Bennett, Woodrow Bennett, his attorney Roland Griffin, and Mrs. Stotler's physician, Dr. John R. Reck. All the above named gathered at the Stotler home on July 6, 1957, and at that time the deed was executed.

It is contended by the appellants that William Bennett, and his son, Woodrow Bennett, were close friends of the appellees; that Roland Griffin was appellees' attorney; that Dr. Reck examined Anna Stotler at her request but left prior to the execution of the deed. Appellants contend that the evidence discloses that Anna Stotler signed the deed as drawn by Attorney Griffin and without alteration; and that the said Griffin had neither talked to nor consulted with her as to what the deed was to contain.

One of the major contentions raised by appellants, to which we first give our attention, is whether the trial court erred in allowing Dr. Reck to testify as to certain matters which appellants argue were privileged communications between a physician and a patient. Anna Stotler, after deciding that she wished to sell her farm, asked that Dr. Reck, her physician, be called to examine her. The physician did not call at her home to administer treatment, but rather he was called in because Anna Stotler desired his opinion as to her competency to execute a deed. Testimony by the doctor was to the effect that other persons were present when he arrived at the Stotler home. He further testified that his conversation with Mrs. Stotler was purely to determine and establish her physical and mental ability to competently execute a deed.

Generally speaking, communications had between physician and patient, which are of a confidential nature, are privileged and inadmissible in evidence. Section 2-1714, Burns' Ind.Stat., 1946 Replacement.

There was evidence to the effect that Dr. Reck was not only Anna Stotler's physician but also her friend and adviser. Evidence was submitted that Dr. Reck had treated Mrs. Stotler on numerous occasions for various ailments. The question here arises as to whether he was acting as a physician in his professional capacity when he advised her as to her competency to execute the deed in question. It was at Anna Stotler's request that the physician came to her home. It appears from the evidence that Mrs. Stotler had asked the professional opinion of her physician and he complied. It has been held that if a physician at the request of his patient submits professional advice or administers treatment to the patient, thence the confidential relationship of physician and patient exists. Chicago, etc. R. Co. v. Gorman (1911), 47 Ind.App. 432, 94 N.E. 730. The fact that the physician-patient relationship exists does not work as an absolute bar to the competency of the physician to testify on certain matters which arise from that relationship. The physician's incompetency may be waived, either expressly or on implication by the patient herself. Metropolitan Life Ins. Co. v. Willis (1906), 37 Ind.App. 48, 76 N.E. 560. This privilege extends only to those things which are of a confidential nature. Therefore a physician may testify as to matters which do not involve a breach of professional confidence. Seifert v. State (1903), 160 Ind. 464, 67 N.E. 100.

The advice Dr. Reck gave Anna Stotler was not entirely clinical in nature. He not only gave her advice as to her physical and mental condition, but also gave her his opinion as to her legal competency to convey her land in the manner she desired. It appears that the matters discussed between them were not of a confidential character. By her actions in the presence of third persons, Anna Stotler expressly and explicitly intended to remove any doubts which might be cast upon the transaction with respect to its legality. The evidence supports the position that Anna Stotler's purpose in calling in Dr. Reck was intended by her to demonstrate to all persons involved that she was sufficiently possessed of her mental faculties to understand the legal consequences of her action. Therefore, it appears that the testimony in question was not confidential and did not come within the provisions of § 2-1714, Burns', supra. The advice sought from the physician appears to have been as that of a trusted friend of long standing. The privilege of confidential relationship, if any, it appears was waived by Anna Stotler herself. Thus it was not error to allow the doctor to testify to what was said or done on the day in question.

The evidence most favorable to appellees shows that though Anna Stotler was eighty-four years of age and...