Stayner v. Nye

• Decision Date: 26 April 1949
• Docket Number: 28549.
• Parties: STAYNER et al. v. NYE et al.
• Court: Indiana Supreme Court

85 N.E.2d 496

227 Ind. 231

STAYNER et al. v. NYE et al.

No. 28549.

Supreme Court of Indiana

April 26, 1949

Appeal from Steuben Circuit Court; Walter D. Stump, Special judge.

Edgar W. Atkinson and Hugh G. Sanders, both of Auburn, for appellant.

Mountz & Mountz, of Garrett, and Wood & Wood, of Angola, for appellee.

EMMERT Judge.

This is an appeal from a judgment setting aside a deed executed by Amos W. Beach on June 24, 1944, to the appellant Audrey L. Stayner, for 120 acres of land in Steuben County and quieting the title of the appellees to said real estate. The cause was tried by the court without a jury, and a general finding was made for all appellees upon the issues joined on various paragraphs of complaint which sought to quiet title to the real estate, and to set aside the deed thereto by reason of fraud and undue influence practiced upon the grantor. A commissioner was appointed to execute a deed to the appellees in conformity with the judgment.

The motion for a new trial, the overruling of which is the error assigned on appeal, challenges the sufficiency of evidence to sustain the finding, and the rulings of the trial court in permitting two physicians who attended the grantor to testify as to his physical and mental condition as observed by them during the time they were his physicians, after the appellees, who were the grantor's only surviving heirs and the administrator of the estate of the grantor had waived objections as to the competency of the physicians.

On appeal, when the sufficiency of the evidence is questioned this court will disregard conflicting evidence, and assume that the evidence to support the finding is true, 'and will give to it every favorable inference which may be reasonably and fairly drawn from it. Mazelin v. Rouyer, 1893, 8 Ind.App. 27, 35 N.E. 303; Chicago Terminal Transfer R. Co. v. Vandenberg, 1905, 164 Ind. 470, 73 N.E. 990.' Klingaman v. Burch, 1940, 216 Ind. 695, 699, 25 N.E.2d 996, 998. The trial court was justified in finding that the grantor decedent, Amos W. Beach, at the time he executed the deed in question on June 24, 1944, was 86 years of age, afflicted with senile dementia, arthritis, heart disease, arteriolosclerosis, and cancer. He had lost control of his bodily functions, and was disoriented and mentally confused. He was bedfast at the time the deed was executed in the Cameron Hospital, and his condition did not improve before the time of his death August 9, 1944. He was a person of unsound mind when the deed was executed.

The deed purported to convey to the appellant Audrey L. Stayner, a stranger to his blood and estate, the remainder in fee, subject to the life estate of the grantor, and all the grantor's interest in the crops and 'his interest in all personal property now located on said farm, including household furniture and goods located in said dwelling house and other goods, including farm tools and other small articles on said fram.' The deed provided the grantee should keep and furnish a home for the grantor, pay the cost of his last illness, $500 for funeral expenses and erect a monument to cost not less than $350, and to have inscribed thereon the name of the grantor and his former wife, with dates of the birth and death of each. The market value of the farm was $7,000, on which there was a mortgage lien in the sum of $675. The grantee cared for the grantor for a period of thirty-four days after he left the Cameron Hospital on July 6th. The consideration for the conveyance was so grossly inadequate that it shocks the conscience of the court. Such transactions have been condemned by this court.

In Ashmead v. Reynolds, 1893, 134 Ind. 139, 142, 143, 33 N.E. 763, 764, 39 Am.St.Rep. 238, this court stated the basis for granting relief in the following language:

'In Wray v. Wray, 32 Ind. [126] at page 133, the following is quoted and approved: 'Where a party is weak and enfeebled in mind by reason of age, or from any other cause, and another takes advantage of such weakness, and by any artifice, or cunning, or undue influence he may possess, or by any improper practices, induces such person to execute a contract, which in the free use and exercise of his deliberate judgment he would not have entered into, such a contract would be set aside for fraud.' * * *

'In Allore v. Jewell, 94 U.S. 506, , a case similar to this, Mr. Justice Field, speaking for the court, said: 'It is not necessary, in order to secure the aid of equity, to prove that the deceased was at the time insane, or in such a state of mental imbecility as to render her entirely incapable of executing a valid deed. It is sufficient to show that, from her sickness and infirmities, she was at the time in a condition of great mental weakness, and that there was gross inadequacy of consideration for the conveyance. From these circumstances, imposition or undue influence will be inferred.''

The trial court properly found the deed was procured by undue influence and fraud. The finding is sustained by the evidence and is not contrary to law.

There was no error in permitting the two physicians to testify as to the physical and mental condition of the grantor. Under the common law communications between a physician and patient were not privileged. Myers v. State, 1922, 192 Ind. 592, 137 N.E. 547, 24 A.L.R. 1196, and cases therein cited; 8 Wigmore on Evidence, 3rd Ed., § 2380. The material part of our statute on competency of physicians now provides:

'The following persons shall not be competent witnesses: * * *

'Fourth. Physicians, as to matter communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases.' § 2-1714, Burns' 1946 Replacement, Acts 1881 (Spec. Sess.), ch. 38, § 275, p. 240. ^[1]

It has been consistently construed not to create an absolute incompetency, but a privilege for the benefit of the patient, which he way waive. Penn Mutual Life Ins. Co. v. Wiler, 1885, 100 Ind. 92, 100, 101, 50 Am.Rep. 769; Morris v. Morris, 1889, 119 Ind. 341, 344, 21 N.E. 918; Lane v. Boicourt, 1891, 128 Ind. 420, 423, 27 N.E. 1111, 25 Am.St.Rep. 442; Pittsburgh, C., C. & St. L. R. C.o. v. O'Conner, 1908, 171 Ind. 686, 85 N.E. 969; Schlarb v. Henderson, 1936, 211 Ind. 1, 4 N.E.2d 205.

The purpose of the statute creating the privilege has been well stated by this court in Penn Mutual Life Ins. Co. v. Wiler, 1885, 100 Ind. 92, 100, 101, 50 Am.Rep. 769, supra:

'The purpose of the statute is not the suppression of truth needed for reaching correct results in litigation, though this may sometimes incidentally occur (as it may also in other instances of exclusion on the ground of wise policy), but the purpose is the promotion and protection of confidence of a certain kind, the inviolability of which is deemed of more importance than the results sought through compulsory disclosure in a court of justice. Notwithstanding the absolutely prohibitory form of our present statute, we think it confers a privilege which the patient, for whose benefit the provision is made, may claim or waive. It gives no right to the physician to refuse to testify, and creates no absolute incompetency. To hold otherwise would result in many cases in obstructing justice without subserving the purpose of the statute. * * *.'

The effect of the statute in prohibiting the ascertainment of truth in many controversies has often subjected its policy to strong criticism. 8 Wigmore on Evidence, 3rd Ed., § 2380a. Because of this result, and under the...