Stafford v. American Security & Trust Co.

• Decision Date: 21 December 1931
• Docket Number: No. 5455.,5455.
• Citation: 55 F.2d 542,60 App. DC 380
• Parties: STAFFORD v. AMERICAN SECURITY & TRUST CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

60 App. DC 380, 55 F.2d 542 (1931)

STAFFORD v. AMERICAN SECURITY & TRUST CO.

No. 5455.

Court of Appeals of District of Columbia.

Argued December 7, 1931.

Decided December 21, 1931.

Fred B. Rhodes and Cooper B. Rhodes, both of Washington, D. C., for appellant.

Frederic D. McKenney, John S. Flannery, and G. Bowdoin Craighill, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

ROBB, Associate Justice.

Appeal by the caveator from a judgment upon a directed verdict sustaining the will (dated September 24, 1924) of Alice M. Keys, who died on March 15, 1930. The caveatee (appellee here), American Security & Trust Company, is named as executor.

The caveator testified that he had not seen or corresponded with testatrix during the last thirty years of her life. His wife testified that she had not seen testatrix subsequent to 1900. Another witness stated that she had not come in contact with the testatrix until more than four years after the will was executed. These witnesses did not testify as to any of the issues involved.

Thereupon Dr. Henry R. Schreiber took the stand as a witness for the caveator. He testified that he was the attending physician of testatrix and that he had a record "of the salient points" of the case. When asked to state what was shown by that record, counsel for caveatee objected. A colloquy ensued, and the court finally ruled that the doctor could not "testify to anything that he learned from her while he was her physician and saw her as her physician." To this ruling an exception was noted.

It is the general rule that a tender of proposed testimony is necessary in order to obtain a review upon appeal of a refusal to admit it (McCurley v. National Savings & Trust Co., 49 App. D. C. 10, 12, 258 F. 154; King v. Davis, 54 App. D. C. 239, 242, 296 F. 986; Herencia v. Guzman, 219 U. S. 44, 46, 31 S. Ct. 135, 55 L. Ed. 81); but in the federal courts when a witness testifies in person and is asked a question in proper form which clearly admits of an answer relative to the issues and favorable to the party calling him, a tender of the expected answer is not necessary, unless the court in its discretion requires such a tender. United States v. Chichester Chemical Co., 54 App. D. C. 370, 372, 298 F. 829; Buckstaff v. Russell, 151 U. S. 626, 14 S. Ct. 448, 38 L. Ed. 292.

In Hutchins v. Hutchins, 48 App. D. C. 495, 500, we ruled that section 1073 of the D. C. Code, c. 854, 31 Stat. 1358 (section 20, tit. 9, D. C. Code, 1929), "renders a physician an incompetent witness in the District of Columbia to testify...