Brackney v. Fogle
| Decision Date | 26 April 1901 |
| Docket Number | 19,436 |
| Citation | 60 N.E. 303,156 Ind. 535 |
| Parties | Brackney et al. v. Fogle et al |
| Court | Indiana Supreme Court |
From the Noble Circuit Court.
Reversed.
T. M Eells, L. H. Wrigley, R. W. McBride and H. G. Zimmerman, for appellants.
L. W Welker and H. C. Peterson, for appellees.
Suit by appellees to contest the will of Esther S. Davis upon the ground of mental unsoundness and undue execution. Judgment for the appellees, which, as affirmatively shown by the record, rests upon the issue of mental unsoundness.
In the progress of the trial the court permitted the following questions and answers of witnesses on behalf of appellees "In your judgment, Mrs. Love, from what you have testified to as having observed about her when you were there with her, was she then of sound mind, and capable of transacting business?" A. Of another witness: "Based upon the facts you have testified to, state if in your opinion Mrs. Davis during your visits to her was of sound mind, and able to transact business." "Well, I don't think she was capable of doing business." Of a third: "Now Miss Shaffer from what you saw while there in the morning, and learned from speaking to her, was she in your judgment a person of sound mind and capable of transacting business?" A.
Incompetent testimony on a material matter is presumed to be prejudicial. Johnson v. Anderson, 143 Ind. 493, 42 N.E. 815. The foregoing testimony with respect to the mental capacity of the testatrix to do business is thoroughly incompetent. The capacity of the testatrix to do business, as applied to the business of making a will, is the precise question the jury was called upon to decide. This it was the duty and exclusive province of the jury to do from a consideration of all the pertinent facts proved by all the witnesses, as affected and controlled by the court's exposition of the law, and not from the crude opinion of witnesses based upon the particular facts within the witness' range. The theory of such an investigation is this: The witnesses may give the facts indicating the mental characteristics and tendencies of the person under inquiry, and, on account of certain well known indescribable aspects of expression and action, non-expert witnesses may, upon the facts they state, express an opinion as to mental soundness generally. The court explains to the jury how the law influences the facts established, and the jury from all the facts as controlled by the law determines whether there was sufficient mental capacity to do the thing in controversy. The witness deals only with facts. The jury with the law and facts. Hamrick v. State, 134 Ind. 324, 34 N.E. 3; Johnson v. Anderson, 143 Ind. 493, 42 N.E. 815; Yost v. Conroy, 92 Ind. 464, 47 Am. Rep. 156; Goodwin v. State, 96 Ind. 550.
During the trial Dr. Reiff, the physician who attended the testatrix in her last illness, was offered as a witness by appellees, and upon objection by the appellant, administrator with the will annexed, was excluded, under § 505 Burns 1894, § 497 R. S. 1881 and Horner 1897. During his argument to the jury, an attorney for appellees, over objection by appellants, was permitted to comment on the exclusion of Dr. Reiff, and to the right of the administrator to waive the statute and permit the physician to testify, and to call him as a witness, among many other things saying, in effect, that the doctor had been with the testatrix shortly before the will was executed, knew her condition, could and would have told it, and appellants kept the witness from the stand to suppress the truth. The court, over the further objection of appellants, instructed the jury that under the law the administrator had the legal right to object to the physician's testifying to any facts that came to his knowledge while professionally treating the testatrix, such matters being confidential, but the administrator had the right to waive objection to such testimony, and could himself call the doctor to the stand, and his failure to do so, or to permit him to testify to such facts, might rightfully be commented on by counsel, and that the jury might consider the conduct of the administrator in these respects with all the other evidence, in determining the case. These rulings are complained of.
This court has uniformly given § 505, supra, a broad and liberal construction in furtherance of its purpose. Masonic, etc., Assn. v. Beck, 77 Ind. 203, 207, 40 Am. Rep. 295; Excelsior, etc., Assn. v. Riddle, 91 Ind. 84; Williams v. Johnson, 112 Ind. 273, 13 N.E. 872; Heuston v. Simpson, 115 Ind. 62, 7 Am. St. 409, 17 N.E. 261; Morris v. Morris, 119 Ind. 341, 21 N.E. 918; Aetna Ins. Co. v. Deming, 123 Ind. 384, 24 N.E. 86; Pennsylvania Co. v. Marion, 123 Ind. 415, 18 Am. St. 330, 23 N.E. 973; Gurley v. Park, 135 Ind. 440, 35 N.E. 279. The purpose of the statute has its roots in public policy, and is intended to promote that confidence and full disclosure often absolutely necessary to a correct treatment of the patient, and which may be withheld under impending danger of publication. The origin of the rule is of very great antiquity and has never failed of enforcement by the courts so far as we have observed; and when the legislature of our State in 1861 (Acts 1861, p. 62), and again in 1881 (Acts 1881, p. 289, §§ 274, 275), extended the right to testify, first to all white persons, and then to all persons, except the classes specified, it was at both times deemed expedient to include within the exception the facts learned by a physician when professionally attending a patient. And so the statute stands and has stood for forty years, in certain and unambiguous terms, clearly guaranteeing protection to every patient while living, and after he is dead. Heuston v. Simpson, supra; Morris v. Morris, supra; Gurley v. Park, supra.
Shall the efficacy of the statute be destroyed by indirection? To claim the protection of the statute is the legal right of a patient, or his representative, of no less inviolability than any other personal right, and it is wholly inconsistent with that right to say that its exercise in a judicial proceeding shall be allowed to prejudice the cause of him who claims it. The...
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