Grieve v. Howard

• Decision Date: 28 March 1919
• Docket Number: 3279
• Citation: 54 Utah 225,180 P. 423
• Court: Utah Supreme Court
• Parties: GRIEVE v. HOWARD

180 P. 423

54 Utah 225

GRIEVE v. HOWARD

No. 3279

Supreme Court of Utah

March 28, 1919

Appeal from the District Court of Salt Lake County, Third District Hon. P. C. Evans, Judge.

Action by Simon Grieve, special administrator of the estate of Helen R. A. Grieve, deceased, against Mark A. Howard.

Judgment dismissing complaint. Plaintiff appeals.

REVERSED and new trial granted.

Hurd &amp Hurd of Salt Lake City, for appellant.

APPELLANT'S POINTS.

The Court erred in sustaining the objections of defendant's counsel to the testimony of Simon Grieve as to conversations had with the deceased; or as to matters equally within the knowledge of the witness and said deceased. Miller v Livingston, 31 Utah 415.

The rule is well settled that a witness cannot be permitted to give an opinion upon the facts in issue. Swan v. Railroad Company, 41 Utah 518.

J. W. Ensign and R. A. McBroom both of Salt Lake City, for respondent.

RESPONDENT'S POINTS.

If one party to the original transaction is precluded from testifying by death, insanity or other mental disability, the other party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction. R. G. W. Ry. Co. v. Utah Nursery Co., 25 Utah 192.

THURMAN, J. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

Plaintiff, as special administrator of the estate of Helen R. A. Grieve, deceased, brought this action to set aside a deed made by his intestate to the defendant. It is alleged in the complaint that deceased at the time of the execution of the deed, February 18, 1916, was eighty-one years of age, feeble in mind and body, had been for many years subject to epileptic fits, and at the time mentioned was nervous, weak, sick, childish, and not of disposing mind, and was unduly influenced and prejudiced against her two sons, plaintiff and John R. Grieve, and also her grandson Frank Howard; that said deed was procured by fraud, circumvention, and undue influence practiced upon deceased by defendant, or some one in his behalf, and that there was no consideration for the deed.

Defendant, by his answer, admitted the execution of the deed and formal matters, but denied the remaining allegations of the complaint.

The case was tried to the court. A jury was impaneled as advisory to the court, and special issues submitted for their consideration relating to the physical and mental condition of the deceased and the question of undue influence used in procuring the deed. The jury found the issues for the defendant. The court adopted the findings, made conclusions of law thereon, and entered judgment dismissing the complaint. Plaintiff appeals, and assigns as error the exclusion of certain testimony, the admission of nonexpert evidence, and letters and documents irrelevant and immaterial.

Plaintiff called as a witness Dr. J. N. Harrison, who qualified as a medical expert, and also testified he had known the deceased, Helen R. A. Grieve, for seventeen or eighteen years, and during all of said time had been her physician; that her physical condition had not been good; that her mental condition varied; that she had her peculiarities during all of the time he had known her; that if the subject was religion she spoke with a great deal of feeling; that she had her peculiar ideas of life, and also upon other subjects, especially astrology. After testifying generally as to her feebleness of mind, advanced age, and physical condition down to the time of her death, the following questions were propounded by appellant, all of which were objected to by respondent:

"(1) Probably you didn't understand my question, Doctor. Now, I will say this, Do you know her mental condition? Or what was her mental state, say, from October, 1915, up to and including February, 1916?

"(2) What peculiarities did you notice, Doctor, with reference to Mrs. Grieve, prior to, for a year prior to, February 18, 1916?

"(3) Doctor, the ailment of Mrs. Helen R. A. Grieve that you have described, what effect did that have upon her physical condition?

"(4) Did the deceased talk to you rationally or irrationally concerning astrology or any other subjects during the period of one year previous to February, 1916?

"(5) Did you observe, Doctor, in your treatments and visits to Mrs. Grieve, any symptoms of melancholia?

"(6) Doctor, you may state whether or not in your judgment the deceased was in such an enfeebled condition of body and mind on or about the 18th day of February, 1916, and for a couple of months prior to that time, that she might have been unduly influenced, wrongfully prejudiced, by the assertions of persons having exclusive control over her, to such an extent that she would erroneously act contrary to her own judgment, and be materially inclined to do things that she would not do if left to her own free will, and to disown her children, and deeding her property to a third party, on the suggestions of persons to be benefited thereby, and leaving her children out of the situation?

"(7) Now, Doctor, in your visits to Mrs. Grieve did you observe anything that would indicate childishness?

"(8) Doctor, a person of Mrs. Grieve's physical condition and of her age, are they susceptible to influences of people that may be closely associated with them and of stronger and freer nature than she was?

The specific objection to each question was that the answer would reveal matters which the witness had learned in the course of his treatment of the deceased, and that the deceased was privileged against the revelation of such matters, and the doctor could not waive the privilege. The objections made invoked the statute (Comp. Laws Utah 1907, section 3414, subd. 4 [Comp. Laws 1917, section 7124], which, as far as material here, reads as follows:

"There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate. Therefore a person cannot be examined as a witness in the following cases: * * *

"(4) A physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient."

The objections were sustained. This, in our judgment, is by far the most important exception presented for our consideration on this appeal, not only because of its inherent importance as a question of practice, but because of the conflicting views of the parties litigant as to the meaning and effect of previous decisions of this court relating to this and other questions somewhat analogous. But before considering the question upon its merits it is necessary to dispose of one or two technical objections against considering the question at all.

Respondent contends that in any event the rulings of the court sustaining the objections were not prejudicial, for the reason that the witness had already testified concerning the same matters, and the answers to the questions objected to would only have been a reiteration of testimony already admitted. If the record fully sustained this contention the position of respondent would be incontrovertible and the authorities cited would be in point; but, as we read the testimony, the contention is not justified, and therefore cannot prevail. It is pertinent to remark, however, that if questions 1, 2, and 3 had been the only questions propounded respondent's point would present a more serious question; for, as shown by the brief substance of the testimony heretofore stated, the doctor had been permitted to testify generally as to the mental condition of the deceased for the last two or three years next prior to her death, none of which testimony, however, went to the question of her incompetency to transact business or her susceptibility to influence exerted by others. These were the vital issues presented by the pleadings, and all of the questions propounded were material to the issues, and, except as to the first three questions above referred to, they had not been covered by the previous testimony of the witness.

Respondent urges the further objection that the questions objected to did not indicate the answers expected, and that appellant should have stated what he expected to prove, in order that the court might determine whether or not the answers would be material and their exclusion prejudicial. Respondent's contention in this regard would have considerable merit were it not for the particular grounds upon which he based his objection. He based it solely upon the ground that the statute prohibited the witness from testifying to the matter inquired of. It is manifest that any statement by appellant as to what he expected to prove would not have obviated the particular objection made.

For the foregoing reasons we deem it our duty to consider this assignment of error upon its merits. In order to avoid confusion, and perhaps an erroneous conception of the real question to be decided, the writer deems it pertinent to state the exact question as he understands it: Can the personal representative of a deceased person, under the statute above quoted, waive the privilege conferred by the statute, and demand that the physician who attended the deceased prior to his death be permitted to testify concerning information acquired necessary to enable him to prescribe or act for the patient? The authorities are uniform, under all the statutes with which we are familiar, that the patient himself can waive or withhold the privilege where the question arises during his life. But the question here is, can his personal representative, after the death of the patient, waive the privilege the same as deceased could have done if...