Hunter v. Hunter, 22299

CourtMississippi Supreme Court
Writing for the CourtHOLDEN, J.
Citation90 So. 440,127 Miss. 683
Docket Number22299
Decision Date23 January 1922
PartiesHUNTER v. HUNTER et al

90 So. 440

127 Miss. 683

HUNTER
v.
HUNTER et al

No. 22299

Supreme Court of Mississippi

January 23, 1922


1. WITNESSES. Physician cannot disclose patient's communications except at patient's instance.

Under section 3695, Code of 1906 (section 6380, Hemingway's Code), a physician cannot disclose the communications of a patient except at the instance of the patient.

2. WITNESSES. Act held not to repeal wholly the privilege communication statute.

Section 4872, Hemingway's Code, does not wholly repeal the "privilege communication" statute above; in a proper case the question may arise as to whether it modifies or repeals it to a limited extent. [127 Miss. 684]

HON. G. C. TANN, Chancellor.

APPEAL from chancery court of Lauderdale county, HON. G. C. TANN, Chancellor.

Proceeding by John Hunter and others, kinsmen of John G. Hunter, deceased, against Anthony D. Hunter, to contest decedent's will. Verdict and decree for contestants, and Anthony D. Hunter appeals. Reversed and remanded.

Decree reversed, and cause remanded.

Baskin & Wilbourn, for appellants.

The learned counsel cite some authorities from different states on construction of statutes which they say are similar to ours on the question of privileged communication.

We deem it unnecessary to discuss these decisions, because our court has passed upon it, in the case of McCaw v. Turner et al., 88 So. 705, and, therefore, have settled the rule, as we understand it, in our state. We might add that we investigated this matter prior to the decision in the case of McCaw v. Turner, supra, and the great weight of authority sustains this court in its interpretation of our privileged communication statute.

The learned counsel undertakes to avoid the effect of the case of McCaw v. Turner et al., by referring to various statutes of our state on the question with reference to public health and the protection of people as to infectious and contagious diseases. This argument strikes us as unique, but it is hard for us to conceive that it has any application to section 3695 of the Code of 1906, section 6380, of Hemingway's Code, which lays down the Rule of Evidence in the trial of cases.

By reference to these various acts, creating a board of health and conferring upon same certain powers to protect the public health, there is not the slightest intimation that it repealed the Act of 3695, Code 1906, section 6380, Hemingway's Code. [127 Miss. 685]

It is not asserted or claimed in the brief of learned counsel that these acts with reference to a board of health by implication repeals the above-cited acts. And it is useless for us to say that repeals, by implication are not favored in the construction of statutes. There is neither an express nor implied repeal of the acts under which McCaw v. Turner et al., was decided.

Therefore, we submit to the court that these acts have no application whatever to the case at bar.

S. M. Graham and V. W. Gilbert, for appellee.

As we understand the brief of learned counsel for appellant the only point seriously urged for a reversal of this case is the admission of the testimony of Dr. Rush. We have in the foregoing part of the argument ignored his testimony, and we think, have demonstrated that the verdict of the jury was inevitable without his testimony being considered. In discussing this testimony it becomes necessary to examine the legislation on this statute relied upon by learned counsel. We do this for the reason that as we gather from the opinion in the case of McCaw v. Turner, 88 So. 705, these statutes were not called to the court's attention and were not considered in that opinion. We feel that these statutes are decisive of the question and shall give a skeleton outline of so much of them as we think necessary for the court to grasp, our contention. When the case at bar was tried the decision in the McCaw case had not been handed down by this court.

In 1912 the legislature created a bureau of vital statistics and prescribed the powers thereof. This chapter 149, Acts 1912, being sections 4869 to 4874 of Hemingway's Code. Section 2 of the Acts provides that the secretary of the state board of health shall be registrar of vital statistics, and prescribes the method of fixing his salary and his duties. Section 3 provides for the division of the state into registration districts. [127 Miss. 686]

Section 5 (section 4872, Hemingway's Code), is as follows: "That any copy of the records of birth, sickness, or death when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima-facie evidence in all courts and places of the facts therein stated." (This section 5 is the pivotal point in our argument and since we are primarily concerned in this case with a death, we attach hereto a blank form of Death Certificate prescribed by the state board of health.)

Section 6 provides that local registrars shall be paid by the county. Section 7 provides penalties for violations of any rule or regulation of the state board of health and it will be observed that there is a penalty prescribed for false information as well as for a failure to make reports.

Again in chapter 194 of the Acts of 1918, the legislature passed an act for the suppression of venereal diseases and prescribed penalties for violations of the same and also provided that any person suspected of being afflicted with a venereal disease is subject to examination by any representative of the state board of health and a refusal to submit to such examination is a misdemeanor. And section 2 of the act provides full power to isolate, quarantine or otherwise confine, intern and treat such cases.

Chapter 208, Acts 1920, authorizes each county in the state to create a department of health and section 5 of the act provides that the health officers of the county or district shall keep an accurate record of all activities of the department of health for the use of the public, and information to the board of health and make such reports as required by the board of health, etc.

We deem it unnecessary to further call attention to statutes such as tuberculosis, epidemics, etc. The court is already thoroughly familiar with them as well as with rules and regulations of the board of health. Where are the secrets of the sacred relationship between physician and patient? As a doctor well said: We are supposed to report everything but we have our weaknesses for a friend. [127 Miss. 687]

The court in the McCaw case (88 So. 705) in speaking of section 6380, Hemingway's Code, say: "The manifest reason and obvious purpose of the statute is to...

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9 practice notes
  • Dixie Greyshound Lines, Inc. v. Matthews, 32273
    • United States
    • United States State Supreme Court of Mississippi
    • November 23, 1936
    ...and character of the injuries should be permitted to testify. Davis v. Elzey, 126 Miss. 789, 88 So. 630, 89 So. 666; Hunter v. Hunter, 127 Miss. 683, 90 So. 440; Watkins v. Watkins, 142 Miss. 210, 106 So. 753; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555; Dabbs v. Richa......
  • Keeton v. State, 31931
    • United States
    • United States State Supreme Court of Mississippi
    • April 6, 1936
    ...in courtroom. Davenport v. State, 143 Miss. 121, 108 So. 433, 45 A. L. R. 1348; Davis v. Elzy, 126 Miss. 789, 88 So. 630; Hunter v. Elzy, 127 Miss. 683, 90 So. 440; Dobbs v. Richardson, 137 Miss. 789, 102 So. 769; Watkins v. Richardson, 142 Miss. 210, 106 So. 753; Metropolitan Life Ins. Co.......
  • Nebhan v. Mansour, 29679
    • United States
    • United States State Supreme Court of Mississippi
    • January 18, 1932
    ...Chew v. Farmers Bank, 2 Md. Chancery 231. After death of the patient no one can waive the privilege of a physician. Hunter v. Hunter, 127 Miss. 683, 90 So. 440. There is no one to waive after death of testator. Sec. 3693, Code of 1930. The acts of the clerk in vacation had not been confirme......
  • Metropolitan Life Ins. Co. v. Evans, 33386
    • United States
    • United States State Supreme Court of Mississippi
    • November 14, 1938
    ...of this court are clear on this question. Miss. Power & Light Co. v. Jordan, 143 So. 485; McCaw v. Turner, 88 So. 705; Hunter v. Hunter, 90 So. 440; Watkins v. Watkins, 106 So. 753; Hamel v. Southern Ry. Co., 74 So. 276. The appellee is unable to find a single instant of this court where in......
  • Request a trial to view additional results
9 cases
  • Dixie Greyshound Lines, Inc. v. Matthews, 32273
    • United States
    • United States State Supreme Court of Mississippi
    • November 23, 1936
    ...and character of the injuries should be permitted to testify. Davis v. Elzey, 126 Miss. 789, 88 So. 630, 89 So. 666; Hunter v. Hunter, 127 Miss. 683, 90 So. 440; Watkins v. Watkins, 142 Miss. 210, 106 So. 753; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555; Dabbs v. Richa......
  • Keeton v. State, 31931
    • United States
    • United States State Supreme Court of Mississippi
    • April 6, 1936
    ...in courtroom. Davenport v. State, 143 Miss. 121, 108 So. 433, 45 A. L. R. 1348; Davis v. Elzy, 126 Miss. 789, 88 So. 630; Hunter v. Elzy, 127 Miss. 683, 90 So. 440; Dobbs v. Richardson, 137 Miss. 789, 102 So. 769; Watkins v. Richardson, 142 Miss. 210, 106 So. 753; Metropolitan Life Ins. Co.......
  • Nebhan v. Mansour, 29679
    • United States
    • United States State Supreme Court of Mississippi
    • January 18, 1932
    ...Chew v. Farmers Bank, 2 Md. Chancery 231. After death of the patient no one can waive the privilege of a physician. Hunter v. Hunter, 127 Miss. 683, 90 So. 440. There is no one to waive after death of testator. Sec. 3693, Code of 1930. The acts of the clerk in vacation had not been confirme......
  • Metropolitan Life Ins. Co. v. Evans, 33386
    • United States
    • United States State Supreme Court of Mississippi
    • November 14, 1938
    ...of this court are clear on this question. Miss. Power & Light Co. v. Jordan, 143 So. 485; McCaw v. Turner, 88 So. 705; Hunter v. Hunter, 90 So. 440; Watkins v. Watkins, 106 So. 753; Hamel v. Southern Ry. Co., 74 So. 276. The appellee is unable to find a single instant of this court where in......
  • Request a trial to view additional results

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