Haverstick v. Banet

• Decision Date: 15 December 1977
• Docket Number: No. 1277S813,1277S813
• Citation: 370 N.E.2d 341,267 Ind. 351
• Parties: Frances HAVERSTICK and Mary Ellen Schlater, Appellants (Plaintiffs below), v. Bernard BANET, Executor of the Estate of Connie Schroeer, Helen Huffman, Rose Kahoe, Nora Banet, Bernard Banet, Ruby Banet, Norma Crow, Clara Coyle, Judy Dorn, and Phyllis Fuller, Appellees (Defendants below).
• Court: Indiana Supreme Court

Page 341

370 N.E.2d 341

267 Ind. 351

Frances HAVERSTICK and Mary Ellen Schlater, Appellants (Plaintiffs below), v. Bernard BANET, Executor of the Estate of Connie Schroeer, Helen Huffman, Rose Kahoe, Nora Banet, Bernard Banet, Ruby

Banet, Norma Crow, Clara Coyle, Judy Dorn, and Phyllis

Fuller, Appellees (Defendants below).

No. 1277S813.

Supreme Court of Indiana.

Dec. 15, 1977.

David B. Hughes, Hughes & Hughes, Indianapolis, for appellants.

Arch N. Bobbitt, Ruckelshaus, Bobbitt & O'Connor, Indianapolis, for appellees.

ON PETITION TO TRANSFER

PRENTICE, Justice.

Plaintiffs (Appellants) are before this Court on petition to transfer, seeking review of an opinion by the Court of Appeals found at 349 N.E.2d 282. It is their position that the ruling precedent followed by the Court and holding that, in a will contest, only the personal representative is entitled to waive the decedent's physician-patient privilege is erroneous. The appeal arose out of an action commenced pursuant to Ind. Code § 29-1-7-17 (1971) to contest the will of Connie Schroeer. Plaintiffs, the heirs of the decedent, are alleging that at the time of the purported execution of her will, Connie Schroeer was of unsound mind and acting under undue influence.

In a trial by jury it was found that the written instrument in question was the will of Connie Schroeer. The Court of Appeals affirmed the trial court which entered judgment upon the verdict of the jury. The issues as presented by the plaintiffs are:

(1) Whether the trial court erred in refusing to permit the plaintiffs, as heirs of the deceased patient, to waive the physician-patient privilege over the objections of the executor, in an action to contest the will.

(2) Whether the trial court erred in refusing to give certain instructions tendered by the plaintiffs and designated Nos. 4, 7, 10, and 11.

ISSUE I

The principle issue as set forth by the plaintiffs in their petition is whether this Court should abolish the "Indiana Rule" which provides that only the personal representative can waive the decedent's physician-patient privilege in a will contest. The Indiana law in this area has remained fairly consistent and clear on the subject since the physician-patient privilege was first enacted by statute, the current version of which reads at Ind. Code § 34-1-14-5 (1973):

"The following persons shall not be competent as witnesses:

"Fourth. Physicians, as to matter communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases."

While the statute speaks specifically to matters which fall within the scope of the privilege, it is silent as to the issues of waiver and as to any effects resulting from the patient's death. In these areas, the extensions and limitations have come about through the judicial process.

In Morris v. Morris (1889), 119 Ind. 341, 21 N.E. 918, this Court dealt with the issue of who could waive the physician-patient privilege after the patient's death. In deciding that the legal representative of the decedent had the right to waive the privilege, the Court stated at p. 344, 21 N.E. at p. 919:

"He (the administrator) was the representative of the testator and was seeking to maintain his will, and had the right, we think, as such representative, to call the physician who attended the testator in his last illness to prove the condition of his mind at the time the will was executed."

Although the court provided that the privilege could be waived by the personal representative of the decedent, no specific mention was made of the heirs' rights to do so.

In Towles v. McCurdy (1904), 163 Ind. 12, 71 N.E. 129, this Court was faced with precisely the same issue as that presented by the plaintiffs today. In Towles, the children of the decedent, one of whom was the sole legatee and devisee, were involved in an action to contest the will. In defining the rationale behind prohibiting waiver of the privilege by the heirs, while at the same time allowing waiver by the personal representative, the Court stated at p. 15, 71 N.E. at p. 130:

"For obvious reasons, when the controversy is among heirs and devisees, the set of such heirs or devisees who strive to The obvious reasons mentioned by the court were never fully explained in Towles or in any of the later cases which followed this approach. Stayner v. Nye (1949), 227 Ind. 231, 85 N.E.2d 496; Studabaker v. Faylor (1912), 52 Ind.App. 171, 98 N.E. 318. Among the states which have decided cases under statutes substantially similar to the one in question, Indiana is the only state to have adopted the above approach. See Annot., 97 A.L.R.2d 393 (1964).

overthrow the will cannot, for their own benefit, and against the wishes of the other set, who desire to sustain it, waive the objection to evidence otherwise incompetent, to the detriment of the interests of those who seek to establish the will."

Although the purpose behind the adoption of the privilege statute is fairly clear in that it is meant to promote and protect the confidential relationship between a patient and his physician, Penn. Mutual Life Ins. Co. v. Wiler (1884), 100 Ind. 92; Masonic Mutual Benefit Ass'n. v. Beck (1881), 77 Ind. 203, the policy behind the waiver rule is much more difficult to comprehend. The defendants would suggest that the personal representative is the only person who stands in the place of the deceased and therefore he is the only one who inherits from the deceased the right to waive the privilege. Further, defendants contend that the personal representative, as executor of the will, has the duty to use such privilege to maintain and uphold the will, such duty resting solely in him.

Courts in other jurisdictions as well as renowned writers in this area, have recognized certain flaws in such reasoning. As to the claim that the personal representative is the only person who stands in the place of the decedent, J. Wigmore, Law of Evidence § 2391 (McNaughton rev. 1961) states:

"The power of an heir may also be conceded if we remember that the heir first, is at least equally interested in preserving the ancestor's reputation, and, second, has an equal moral claim to protect the deceased's property rights from unwarranted diminuation."

Plaintiffs contend that it would be unjust and inequitable to allow the personal representative to have the sole discretion as to waiver of the privilege, especially where as here, he is also the largest specific legatee under the instrument in question. They suggest that it is unfair and absurd to permit the personal representative to offer the physician's testimony in the event that it should prove beneficial to his position, and to withhold it if it is detrimental. In support of their position, plaintiffs cite several cases from other jurisdictions which have ruled on the same issues presented here.

In Winters v. Winters (1887), 102 Iowa 53, 71 N.W. 184, the decedent's brother and only heir filed objections to the will which was offered for probate by the widow as named executrix. Remarking on the Indiana decisions which addressed this same issue, the Iowa court stated at p. 185:

"The particular vice in the reasoning in these cases, in making the distinction between the heir at law and devisee, is the assumption that the paper in dispute is the will of the deceased. The statutes are for the benefit of the patient while living and of his estate when dead. The very purpose of the contest is to determine whether the deceased in fact made a will, who shall be his representative, and who is entitled to his estate? If he did not have testamentary capacity, then the paper was not his will, and it is not the policy of the law to maintain such an instrument. It is undoubtedly the policy of the law to uphold the testamentary disposition of property, but not until it is ascertained whether such a disposition has been made. The same presumptions are indulged in favor of the validity of the will as of other instruments. The paramount purpose in the first instance should be to ascertain whether the instrument presented is in fact the will of the deceased. And no one can be said to represent the deceased in that contest, for he could only be interested in having the truth ascertained, and his estate can The heirs of the decedent brought action to contest the will naming their sister executrix in In Re Koenig's Estate (1956), 247 Minn. 580, 78 N.W.2d 364. In adopting the Winters rationale, the Minnesota court commented on the nature of the interests involved in stating at p. 369:

only be protected by establishing or defeating the instrument as the truth so...