McCaw v. Turner
| Decision Date | 01 March 1921 |
| Docket Number | 21930 |
| Court | Mississippi Supreme Court |
| Parties | MCCAW ET AL. v. TURNER ET AL |
APPEAL from chancery court of Montgomery county, HON. J. G. MCGOWEN Chancellor.
Suit by Alice Moore McCaw and others against Osborne Turner, executor of the will of Mrs. Ella A. Lay, deceased, and others, to have the will set aside on the ground of undue influence and mental incapacity. From a decree upholding the will plaintiffs appeal. Affirmed.
Affirmed.
James Stone & Sons, for appellants.
Section 3695, of the Code of 1906, section 6380, of Hemingway's Code, reads as follows: "All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient.
The first construction of this statute was in the case of the Y. & M. V. Railway Company v. Messina (1915), 109 Miss. 143, 67 So. 963. This was an action for damages and at the trial the defendant railway company attempted to introduce the testimony of the physicians who had treated the plaintiff at the time of his injury, there being in dispute the quality of the treatment which the plaintiff had received at the hands of these physicians. Upon objection of the plaintiff this testimony was excluded, as being privileged under section 3695 of the Code of 1906.
In Hamel v. So. Ry. In Mississippi (1917), 113 Miss. 344 74 So. 276, the same question was at issue. The wife of the deceased patient brought an action for damages for the death of her deceased husband. At the trial of the court allowed the defendant railway company to introduce, over the objection of the widow of the deceased patient, the testimony of a physician who had attended the deceased during his lifetime, and who testified that his death was due proximately to pellagra. Upon appeal, the action of the trial court was reversed, and it was held that this testimony should not have been admitted over the objection of the widow of the deceased patient.
The next case construing this statute was the case of the Newton Oil Mill Company v. Spencer, (1918), 116 Miss. 568, 77 So. 605. This was also a damage suit for injury sustained and plaintiff introduced in evidence testimony of a physician who had examined him about four weeks after the injury. The defendant Oil Mill Company thereupon attempted to introduce a physician who had examined the patient to testify as to the extent of his injury, but the plaintiff objected to the introduction of this testimony on the ground that it was privileged under section 3695, and his objection was sustained.
The case of the Sovereign Camp of the W. O. W. v. Farmer (1918), 116 Miss. 626, 77 So. 655, involved merely the question of whether or not in an application for insurance made by the deceased previous to his death, he could waive the privilege given him by section 3695 of the Code of 1906 and it was held that he could.
The last decision of this court which construes this statute is the case of the United States Fidelity & Guaranty Company v. Hood (1921), 87 So. 115. This case is simply a repetition of the principle enunciated in the case of the Newton Oil Mill Company v. Spencer.
We have gone into detail with regard to these cases because opposing counsel seems to be laboring under the idea that the question at issue in the case at bar has already been settled by the decisions of this court. Such is not the fact, for the reason that this court has never settled: First, whether or not the power to waive the privilege conferred upon the patient by the statue is a power which is personal to the patient and dies with him, or whether or not it is a power which may be exercised after the death of the patient by those who stand in a personal or representative position as regards the patient. Second, whether or not, if the privilege of the statute may be waived after the death of the patient by parties standing in certain relation to him, contesting heirs at law stand in such relation to the deceased patient as to be able to waive the privilege conferred upon such patient by the statute.
The power to waive the privilege conferred upon the patient by the statute does not die with him, but may be exercised after his death by parties standing in a personal or representative relation as regards such patient.
It is held in almost all jurisdictions, having statutes similar to ours, that the power to waive the privilege of the statute may be exercised after the death of the patient, by those who stand in a personal or representative relation as regards such patient. Wigmore on Evidence (1905 Ed.), section 2391; Pennsylvania Mutual Life Insurance Co. v. Wiler (1884), 100 Ind. 92, 50 Amer. Rep. 769; Morris v. Morris (1889), 119 Ind. 341, 21 M. E. 918; Denning v. Butcher (1894), 91 Iowa 425, 59 N.W. 69; Eraser v. Jennison, 42 Mich. 209, 3 N.W. 882; Morris v. Morris (Ind. Sup.), 21 N.E. 919, 12 S.W. 513; Groll v. Tower, 85 Mo. Law, p. 142; Gurley v. Park (Ind. Sup.), 35 N.E. 279. To 249; Association v. Beck, 77 Ind. 230; 19 Am. & Eng. Enc. the same effect are the cases of Kirsher v. Kirsher (1903), 120 Iowa 337, 94 N.W. 846; Long v. Garey Investment Co. (1906), 110 N.W. 26; Gen. St. sec. 3649, 2 Mill's Ann. St., sec. 4824; In Re Parker's Estate (1907), 111 N.W. 119; Groll v. Tower (1884), 85 Mo. 249, 55 Am. Rep. 358; Thompson v. Ish (1889), 12 S.W. 510.
We conclude, as before, that where the dispute is between the devisees and heirs at law, all claiming under the deceased, whether the devisees or heirs at law, may call the attending physician as a witness. Olson v. Court of Honor (1907), 100 Minn. 117, 110 N.W. 374, 8 L. R. A. (N. S.) 521.
We shall now proceed to give a list of jurisdiction in which similar statutes have been construed unfavorably to our contention. North Dakota: Auld v. Cathro (1910), 20 N.D. 461, 128 N.W. 1025, 32 L. R. A. (N. S.) 71. Utah: In Re Van Alstin's Estate (1903), 26 Utah 193, 72 P. 942. California: The principal case in California is the case of In re Flint, 100 Cal. 391, 34 P. 863. New York: Roche v. Nason, 185 N.Y. 128, 77 N.E. 1007. Michigan: In re Mansbach's Estate (1907), 150 Mich. 348, 114 N.W. 65.
It seems clear that both authority and reason indicate that our Mississippi statute should be so construed as to empower parties who stand in certain personal relation to the deceased patient to waive the privilege conferred upon such patient by section 3695 of the Code of 1906. While the Michigan and New York decisions, under their amended statutes, are not authority for the contention we make here, yet they should have weight as showing the experiences of those jurisdictions, to the effect that the interpretation formerly placed upon their statutes by their courts resulted in such impossible situations that the statutes had to be amended by their legislatures.
If this privilege conferred upon the patient by the statute may be waived, after the death of the patient, by those who stand in a representative relation to him, we contend that heirs at law, even though contesting the will of such patient, stand in such representative relation to the patient as to have the power to waive the privilege conferred by the statute.
While most of the jurisdictions agree that the privilege conferred by the statute may be waived after the death of the patient by the proper representative, there is a square conflict of authority as to who stands in such representative relation to the deceased patient as to be able to waive the privilege given by the statute. Some courts hold flatly that heirs at law who are contesting the will of the deceased patient, are not representatives of the patient, and cannot waive the privilege of the statute. The leading jurisdiction so holding is Indiana. Towles v. McCurdy (1904), 163 Ind. 12, 71 N.E. 120; and Heuston v. Simpson (1888), 115 Ind. 62, 17 N.E. 261, 7 Am. St. Rep. 409. These cases hold that contesting heirs at law cannot waive the privilege of the statute because they are not representatives of the testator.
Now the fallacy in the reasoning of the Indiana cases is that they decide that the contesting heirs at law cannot waive the privilege of the statute, not because such power of waiver dies with the patient, but because the contesting heirs at law are not representatives of the deceased patient.
This is pointed out clearly in the case of Winters v. Winters (1897), 102 Iowa 53, 63 Am. St. Rep. 428.
To the same effect is the case of Fish v. Poorman (1911), 85 Kans. 237, 115 P. 998.
It seems to us that the most reasonable and most logical interpretation of these privileged communication statutes is that, in will contests, all who claim under the deceased patient are equally his representatives for the purpose of waiving the privilege conferred by the statute, whether they be proponents or contestants of his will. Certainly those, who are his blood kin will be more zealous in protecting his character and reputation from discredit, than the majority of personal representatives, who frequently bear no relation to the deceased.
There are several jurisdictions which have construed in this way statutes with regard to privilege communications between attorney and client. The statutes are similar in character to the statutes regarding communications between physician and patient, and are to that extent authority for our contention. In re Green's Estate (1907), 102 Me. 455, 67 A. 317; Holyoke v. Holyoke's Estate (1913), 110 Me. 469, 87 A. 40; Glover v. Patten (1897), 17 S.Ct. Rep. 411, 165 U.S. 394.
The Indiana doctrine in its logical application will finally result in the finest flower of...
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