Schornick v. Schornick

• Decision Date: 21 November 1923
• Docket Number: Civil 2060
• Citation: 25 Ariz. 563,220 P. 397
• Parties: HARRY L. SHORNICK, Appellant, v. ALMA A. SHORNICK, Appellee
• Court: Arizona Supreme Court

220 P. 397

25 Ariz. 563

HARRY L. SHORNICK, Appellant, v. ALMA A. SHORNICK, Appellee

Civil No. 2060

Supreme Court of Arizona

November 21, 1923

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded and a new trial granted.

Messrs Silverthorn & Van Spanckeren and Mr. W. E. Ryan, for Appellant.

Messrs Alexander & Christy and Mr. Hess Seaman, for Appellee.

OPINION

ROSS, J.

This is a suit in equity, in which the appellant, Harry L Schornick, the son and heir at law of George Schornick deceased, seeks to have a deed of said George Schornick to Alma A. Schornick, his wife, of an eighty-acre tract of land (the separate property of deceased), in Maricopa county, Arizona, set aside on the ground of mental incapacity of grantor, and undue influence exerted over the grantor by the grantee.

The plaintiff, who is a physician, attended his father in his last illness, and while a witness in his own behalf was questioned as to his father's mental capacity at the time of the execution of the deed. This testimony, upon objection, was excluded as privileged. It was particularly sought to show by this witness "what narcotics were administered to the patient," and that their effect upon the disease from which George Schornick was suffering was to render him mentally incompetent. After all of the testimony was in, upon the motion of defendant, the jury was discharged, and judgment by the court dismissing plaintiff's complaint was entered.

The ruling of the court rejecting the offer of plaintiff's testimony on the ground of its privileged character is the principal assignment on appeal. It presents a very interesting as well as important question; it has not been presented to the courts of this state before, and we are at liberty to adopt the rule that seems to us most reasonable and best suited to attain justice in cases of this kind.

The particular statute invoked by defendant, while differing somewhat in phraseology from the statutes of other states on the subject of privileged communications, is substantially the same in meaning and effect. It is as follows:

"A physician or surgeon cannot be examined, without the consent of his patient, as to any communication made by his patient with reference to any physical or supposed physical disease or any knowledge obtained by personal examination of such patient; provided, that if a person offer himself as a witness and voluntarily testify with reference to such communications, that is to be deemed a consent to the examination of such physician or attorney." Subdivision 6, par. 1677, Civ. Code of 1913.

It will be noted that the patient is expressly authorized to waive the protection of the statute, but the statute is silent as to the right or power of anyone else to waive such privilege for the patient, either during his lifetime or after his death. But it would seem that, if the patient might in his lifetime personally waive the claim of secrecy, he could do so by his agent or attorney. When he dies and can no longer act for himself, or appoint others to act for him, the law steps in and names those who may act in his stead, by reason of the interest they have as his heirs at law or by appointment as his personal representative. Just how far these latter may represent the deceased patient in the matter of waiving the statutory protection, or whether they may waive it at all, has been the rock upon which the courts have divided. If the right to waive the privilege dies with the patient, then whatever he may have communicated to his physician, or whatever the physician may have learned by observation or examination, although its disclosure would save his estate or preserve his good name, is doomed to eternal oblivion.

Committed to the rule that the privilege can be waived by the patient only, and that in his lifetime, are the courts of California, Wisconsin and North Dakota. In re Flint's Estate, 100 Cal. 391, 34 P. 863; In re Nelson's Estate, 132 Cal. 182, 64 P. 294; In re Hunt, 122 Wis. 460, 100 N.W. 874; Auld v. Cathro, 20 N.D. 461, Ann. Cas. 1913A, 90, 32 L.R.A. (N.S.) 71, 128 N.W. 1025. This was formerly the rule in New York (In re Myer, 184 N.Y. 54, 6 Ann. Cas. 26, 76 N.E. 920), but in 1893 it was changed by statute, by the terms of which the executor, the surviving husband or widow, or any heir at law or next of kin, was authorized to waive the privilege, except confidential communications and facts tending to disgrace the memory of the deceased patient. Twaddell v. Weidler, 109 A.D. 444, 96 N.Y.S. 90, affirmed 186 N.Y. 601, 79 N.E. 1117; Roche v. Nason, 185 N.Y. 128, 77 N.E. 1007. See note to In re Gray, Ann. Cas. 1912B, 1042. This rule was originally adopted by the courts of Utah (In re Estate of Van Alstine, 26 Utah 193, 72 P. 942), but in the recent case of Grieve v. Howard, 54 Utah 225, 180 P. 423, that court in a very able and well-reasoned opinion repudiated the doctrine announced in the Van Alstine case, and held that the privilege or protection of the statute could be waived by the personal representative of the deceased patient.

Under our statutes (paragraphs 1673-1678, inclusive, Civ. Code 1913) there are only two classes of witnesses incompetent to testify: (1) Those of unsound minds; and (2) children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly. All other persons are competent to testify, and may do so if not disqualified by reason of the existence of some confidential relationship, such as husband and wife, attorney and client, priest and penitent, or physician and patient. The disqualification is not absolute even where these confidential relations exist, as under the statute one spouse may testify for or against the other upon the latter's consent, and so may the attorney, priest or physician upon the consent of the client, penitent or patient. The cloak of secrecy may be removed by the consent of the party for whose protection it was intended. The rule of the common law that disqualified a party to litigation, or one interested therein, or an infidel, or one indicted, accused or convicted of crime from being a witness, has been abolished. So the legislative policy is to remove every obstacle in the way of ascertaining the truth, and what was formerly thought a disqualification to testify goes now only to the weight of the witness' testimony. In the confidential relations mentioned the spouse, client, penitent and patient are the custodians of the secrets, and not those whose professional counsel or aid was had. The law has not unalterably sealed the lips of anyone capable of receiving just impressions of facts and of relating them truly.

What was said of the statute of another state may well be said of ours:

"The statute quoted contemplates that the patient may consent to this physician's testifying. Therefore no question of public policy is involved. The public policy of the state does not depend upon the will of individuals who are free to act as circumstances may suggest them. It is elementary law that communications, made in professional confidence, are not incompetent. If a third person hear them he may testify. The disqualification is imposed upon the lawyer, physician or priest only, and not for his benefit, or for the benefit of the public, but merely as a privilege to the client, patient or person confessing. This privilege, like many others, even those protected by constitutional guaranty, may be waived. By statute, if the party himself testify, the privilege is waived. If he publish the confidential matter to the world the privilege is waived." Insurance Co. v. Brubaker, 78 Kan. 146, 155, 16 Ann. Cas. 267, 130 Am. St. Rep. 356, 18 L.R.A.(N.S.) 362, 96 P. 62, 65.

One of the earliest announcements by an American court of the doctrine that these privileged statutes could be waived by others than the patient was made by that wise jurist and author, Mr. Justice COOLEY, 895, as follows:

"This statute, as we have held, covers information acquired by observation while the physician is in attendance upon his patient, as well as communications made by the patient to him (Briggs v. Briggs, 20 Mich. 341); but the rule it establishes is one of privilege for the protection of the patient; and he may waive it if he sees fit (Scripps v. Foster, 41 Mich. 742); and what he may do in his lifetime, those who represent him after his death may also do for the protection of the interests they claim under him."

Since the protection of the statute is not absolute but may be waived by the patient, it cannot be said to be a rule of evidence founded in public policy. The lawmaker has seen no harm or injury to the public or public good in leaving it optional with the patient as to whether his physician should be permitted to testify as to what he has learned professionally, and consequently has confided to the patient entire freedom to waive the privilege if he sees fit. The privilege, then, is one concerning, first, the patient in his lifetime, and second, his good name and estate after his death, and if the rule be limited to waivers for the protection of his memory and estate, we can see no good reason why it may not be exercised by the personal representative and the heirs at law -- the one as well as the other. It may be taken for granted that the patient will not waive the privilege when the testimony of his physician would be damaging to his property interests or when it has a tendency to disgrace and humiliate him or expose him to public hatred and shame. And likewise it may be assumed the heirs at law and personal representatives would, for personal, if no other, reason be...