Hunter v. Hunter

• Citation: 90 So. 440,127 Miss. 683
• Decision Date: 23 January 1922
• Docket Number: 22299
• Court: United States State Supreme Court of Mississippi
• Parties: HUNTER 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.

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.

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.

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.

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 enable a patient to disclose his infirmities to his physician without fear that his feelings will be shocked or his reputation tarnished by their disclosure by the physician without his consent."

But what becomes of the manifest reason and obvious purpose of the statute, when by the subsequent legislation of the state, the physician is compelled to make these very disclosures whether the patient consent or not? And being dead how could he consent? Cessante ratione, cessat et ipsa lex.

Dean Wigmore in section 2380, page 3350, Vol. 4, of his great work on Evidence says: "(1) In only a few instances, out of the thousand daily occurring, is the fact communicated to the physician confidential in any real sense. Barring the facts of venereal disease and criminal abortion, there is hardly a fact in the catagories of Pathology in which the patient himself attempts to preserve any real secrecy. Most of one's ailments are immediately disclosed; the few that are not openly ascertainable are at least explained to intimates. Most statistical reckoning is needed (our statutes require it). These facts are well enough known."

He also says in section 2391: "The power of the heir (to waive) may also be conceded, if we remember that the heir, first, is at least equally interested in preserving the ancestor's reputation; and secondly, has an equal moral claim to protect the deceased's property rights from unwarranted diminution. The futility, under the circumstances, of predicating any privilege is the more apparent when (as in the usual case) the issue turns upon the fact of insanity, which is so bruited publicly in the litigation that the pretense of preserving secrecy is a vain one."

How much stronger the reason when our statutes have abolished all pretense of preserving secrecy and makes it prima-facie in all courts and places. The only case we have found in anywise in point is a digest of an opinion in 180 Ind. 282, Pence v. Myers, wherein it was held that since under the Indiana statutes it was well established that a physician, attendant on a testator at the time of his death, should not be permitted to testify in a will contest as to the condition of a testator's mind, or as to the disease from which he suffiered, the cause or duration of illness, and the cause of his death, the admission in evidence of the death certificate of such physician, or a record kept by the county health officer and prepared from the physician's certificate showing these facts or any of them was error.

The court recognized the inevitable conflict between the death certificate and its contents and the statute on privileged communication. In other words the reports and records of the sickness or death of a party and the disease or infirmity with which the patient was afflicted disclosed and discloses confidential communications and is just as much in conflict with the statute on privileged communication as if the doctor testified to it in person. And our statute provides, as evidently the statutes of Indiana did not, that the records of the state board of health, disclosing these infirmities is competent evidence in all courts and places. In short, admitting the records of the state board of...