Flack v. Brewster

• Decision Date: 05 June 1920
• Docket Number: 22,543
• Parties: W. F. FLACK, GORDON FLACK, JOHN FLACK and ELLA VIELLEAUX, Appellees, v. MATTIE BREWSTER, Appellant
• Court: Kansas Supreme Court

190 P. 616

107 Kan. 63

W. F. FLACK, GORDON FLACK, JOHN FLACK and ELLA VIELLEAUX, Appellees, v. MATTIE BREWSTER, Appellant

No. 22,543

Supreme Court of Kansas

June 5, 1920

Decided January, 1920.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEED--Mental Capacity of Grantor--Privileged Communications--Evidence of Physician--Waiver. In an action by heirs of a deceased grantor, contesting the validity of a deed executed by the grantor to her sister shortly before her death, upon the ground of the unsoundness of her mind at the time of the execution, the testimony of a physician who attended her in her last illness as to knowledge gained by him in his professional capacity, relating to her mental condition, may be admitted, where the heirs of the deceased grantor have waived the statutory privilege afforded by section 321 of the civil code.

2. SAME -- Evidence -- Privileged Communications -- Parties Entitled to Assert the Statutory Privilege As the defendant in the action, although a sister of the deceased grantor, claimed no rights as heir or devisee, but defended solely on the basis of being the grantee in the deed, she is not entitled to assert the statutory privilege, or object to the testimony of the physician in regard to the competency of the grantor.

Claude J. Bryant, and Charles D. Shukers, both of Independence, for the appellant.

George H. Wark, of Caney, and Thomas E. Wagstaff, of Independence for the appellees.

OPINION

JOHNSTON, C. J.:

The plaintiffs brought this action against their sister, Mattie Brewster, to cancel and set aside a deed executed to her by Mary Clifford, who was a sister of all the parties to this action. It was alleged that the instrument was executed and delivered a few days before the death of Mary Clifford, when she was mentally incapable of executing the instrument or of transacting business of any kind. From the testimony the court found that she did not have the mental capacity to execute the deed, and therefore set it aside and directed a partition of the property among the plaintiffs and defendant, they being her only heirs.

The principal contention on this appeal is that the testimony of two physicians who attended Mary Clifford in her last illness, which related to information as to her mental capacity, gained by them while attending her in a professional capacity, was improperly admitted. The testimony was admitted over the objection of the defendant and the grantee in the deed which was attacked. The objection is based on the statute providing that--

"The following persons shall be incompetent to testify:

. . . .

Sixth, a physician or surgeon concerning any communication made to him by his patient with reference to any physical or supposed physical disease, defect, or injury, or the time, manner or circumstances under which the ailment was incurred, or concerning any knowledge obtained by a personal examination of any such patient, without the consent of the patient." (Gen. Stat. 1915, § 7223.)

The plaintiffs contend that the disqualification of the witnesses may be waived and that the objection to the privileges was not available to the defendant. They insist that as heirs at law and interested in the protection of the estate of the deceased, they could, and by the offer of the evidence did, waive the privilege, and that defendant was defending as grantee in the deed and was asserting no rights as heir, and was therefore not in a position to invoke the privilege or make the objection. There is considerable conflict in the authorities as to the application of the rule and as to when and by whom the privilege may be waived. It has been held in a testamentary proceeding that the patient is the person interested in preserving unbroken the confidence reposed in his physician and after his death there is no one to assert the privilege. Allen v. The Public Administrator, 1 Bradf. [N.Y.] 221.) In 1 Wharton on the Law of Evidence, § 591, it is said:

"The privilege, it should also be remembered, is meant to protect the living in their business relations, and cannot be invoked when the question arises as to the intention of a deceased person in respect to the disposition of his estate."

(See, also, Staunton v. Parker, 19 Hun 55 [N.Y. ]). Many authorities, however, hold that the privilege survives to personal representatives of the deceased, his family, and those personally interested in protecting his reputation and estate. (4 Wigmore on Evidence, § 2386.) That author says:

"The privilege, furthermore, is that of the patient as such, not of the party; hence, the claim should be made by the patient himself, in accordance with the analogy of other privileges (ante, §§ 2270, 2321) -- though this rule is seldom observed in practice. The privilege, furthermore, may be claimed by the representative of a deceased patient, as his personal successor; but not by a mere assignee of a contract-interest."

On the other hand, it has been held that the prohibition of the statute is founded on public policy, and unless it has been expressly waived by the patient the testimony of the physician can never be revealed; that a waiver may not be made by an executor or administrator; that any party to an action can object to evidence coming within the prohibition unless the patient, the person for whose protection the statute was enacted, has waived the privilege; and that when the patient is dead the matter is forever closed. (Westover v. AEtna Life Ins. Co., 99 N.Y. 56, 1 N.E. 104). In re Flint, 100 Cal. 391, 34 P. 863, adopted the rule of the Westover case just cited, and held that the heirs of a deceased person who contest...