Thompson v. Smith

• Decision Date: 27 February 1939
• Docket Number: No. 7206.,7206.
• Citation: 70 App. DC 65,103 F.2d 936
• Parties: THOMPSON v. SMITH.
• Court: U.S. Court of Appeals — District of Columbia Circuit

70 App. DC 65, 103 F.2d 936 (1939)

THOMPSON v. SMITH.

No. 7206.

United States Court of Appeals for the District of Columbia.

Decided February 27, 1939.

Petition for Rehearing Denied March 28, 1939.

Wm. E. Leahy and James F. Reilly, both of Washington, D. C., for appellant.

Alfred L. Bennett and John Lewis Smith, Jr., both of Washington, D. C., for executor.

Before STEPHENS and EDGERTON, Associate Justices, United States Court of Appeals for the District of Columbia, and WHEAT, Chief Justice, District Court of the United States for the District of Columbia.

STEPHENS, Associate Justice.

This is an appeal from an order sustaining a will. The decedent, Wena D. Thompson, died in the District of Columbia December 1, 1936, leaving a paper writing designated her last will and testament, dated December 13, 1935. The paper writing nominated the caveatee, John Lewis Smith, executor. In the usual course this purported will was offered for and admitted to probate and letters testamentary were ordered issued to the executor named; and upon the filing of an undertaking required of him by the probate court, they were issued. Thereafter, the appellant John W. Thompson, who was the eldest son of the decedent, filed a caveat to the will. Donald D. Thompson, who was the third son of the decedent, the executor, and persons unknown were designated as defendants. The executor answered. Upon the pleadings three issues were framed: (1) was the paper writing the last will and testament of Wena D. Thompson; (2) was Wena D. Thompson at the time of making and subscribing the paper writing of sound and disposing mind and capable of executing a valid will; and (3) was the paper writing obtained or its execution procured by fraud, coercion and undue influence of Donald D. Thompson or others unknown. The case was tried before a jury. At the close of the evidence, the court told the jury that the caveator had made no case under the third issue and instructed the jury to answer that in the negative. This the jury did. The other two issues were submitted to the jury and the verdict was in the affirmative upon each. The court then entered the order appealed from. Of numerous errors assigned only those hereinafter discussed were argued in the appellant's brief. We treat the others as abandoned. We state below further facts pertinent to the particular errors argued.

I.

On the issue of mental competency, the caveatee offered as witnesses two physicians who had attended the decedent during her lifetime. Objection to their testimony was made by the appellant upon the ground that it was within the privilege established by statute for confidential information acquired by a physician in attending a patient. But the appellee stated that, as executor, he waived the privilege, and the physicians were permitted to testify. The appellant urges that the executor could not lawfully waive the privilege and that the court therefore erred in admitting the testimony.

We think that the ruling of the trial court was correct. The statute in question provides:

"Sec. 1073. Physicians, Testimony of. — In the courts of the District of Columbia no physician or surgeon shall be permitted, without the consent of the person afflicted, or of his legal representatives, to disclose any information, confidential in its nature, which he shall have acquired in attending a patient in a professional capacity . . .." 31 Stat. 1358, D.C.Code (1929) tit. 9, § 20 The statute is not lacking in clarity. The phrase "legal representatives" has an accepted meaning which includes "executor." See Briggs v. Walker, 1898, 171 U.S. 466, 19 S.Ct. 1, 43 L.Ed. 243. In that case the Supreme Court said, at page 471, 19 S.Ct. at page 3: "The primary and ordinary meaning of the words `representatives,' or `legal representatives,' or `personal representatives,' when there is nothing in the context to control their meaning, is `executors or administrators,' they being the representatives constituted by the proper court. Citing authorities" See also 2 Jarman, Wills (7th ed. 1930) 1585; 2 Williams, Executors (12th ed. 1930) 729; Page, Wills (1901) § 533.

The appellant relies upon Hutchins v. Hutchins, 1919, 48 App.D.C. 495; Stafford v. American Security & Trust Co., 1931, 60 App.D.C. 380, 55 F.2d 542; Labofish v. Berman, 1932, 60 App.D.C. 397, 55 F.2d 1022; Westover v. Aetna Life Ins. Co., 1885, 99 N.Y. 56, 1 N.E. 104, 52 Am.Rep. 1; Reinhan v. Dennin, 1886, 103 N.Y. 573, 9 N.E. 320, 57 Am.Rep. 770; Loder v. Whelpley, 1888, 111 N.Y. 239, 18 N.E. 874; and In re Will of Hunt, 1904, 122 Wis. 460, 100 N.W. 874. We think the three local cases are not controlling and the other cases not persuasive.

Hutchins v. Hutchins, supra, was a will contest. At the trial the caveator, who was one of the named executors, offered the testimony of a family physician of the decedent. The caveatees, who were also named executors, objected upon the ground that the testimony was privileged under the same statute as is involved in the instant case. The trial court ruled that the privilege forbade the doctor to testify to what the decedent had said or to what he, the doctor, had learned in examining him, but the trial court permitted the doctor to make his own discrimination between such material and competent material and to testify as to the latter. On the appeal we held that it was error to permit the witness himself to make the discrimination — that the court should have done it. In discussing the statute establishing the privilege, we said that to its sweeping exclusionary effect "there is a single exception. Such testimony may be received with the consent of the patient or his legal representatives. The exception is not in this case. Hence, the proferred witness was confronted by the general prohibition of the statute." (48 App.D.C. at page 500) Also at the trial the caveatees offered the depositions of certain physicians, and then the caveator raised the statutory privilege. The trial court ruled that the caveatees had established the law of the case, so far as the admission of this class of evidence was concerned, by themselves invoking the privilege against the caveator, but refused to examine the depositions to determine whether they contained competent material. On appeal we ruled that this was prejudicially discriminatory and error. We ruled also that the contention that the caveatees were the legal representatives of the decedent and as such could waive the restrictions of the statute was without merit, saying that: "While, by virtue of their appointment as executors in the will, they could appear to defend it, they were not legal representatives within the purview of the statute." (48 App.D.C. at page 502) In another connection we remarked also: "It is true that the caveatees are only executors eo nomine until the probate of the will, . . ." (48 App.D.C. at page 502) It seems apparent from the foregoing, and it is made clear by reference to the record in the case, that the ruling of the court on the question of waiver of privilege by the executors was based upon the proposition that they were merely executors eo nomine and not de jure, this for lack of admission of the will to probate and formal issuance of letters. Since in the instant case letters testamentary had been issued to the executor, the Hutchins case is distinguishable, and we need not now consider whether or not it was correctly decided.

In Stafford v. American Security & Trust Co., 1931, 60 App.D.C. 380, 55 F.2d 542, no question whether a legal representative of a decedent could waive the statutory privilege was presented.

In Labofish v. Berman, 1932, 60 App.D. C. 397, 55 F.2d 1022, refusal by the trial court to allow an attending physician of a decedent to testify in a will contest was sustained on appeal under the same statute as is involved in the instant case. The testimony was offered by the caveatee who was named executor in the will. While no reference was made in the case to Hutchins v. Hutchins, the decision seems to have been upon the theory therein stated, that is, that since the named executor had not yet had letters testamentary issued to him, he was not within the meaning of the statute a legal representative empowered to waive the privilege.

Westover v. Aetna Life Ins. Co., Reinhan v. Dennin, and Loder v. Whelpley, supra, were all decided under a New York statute (N.Y.C.C.P. (1876) Sec. 834, 836) which rigidly forbade a physician to disclose, after the death of his patient, information acquired in a professional capacity, and which made no exception whatever. The cases are therefore not in point. It is urged by the appellant that the New York statute was later amended so as to provide that the prohibition of the statute could be "expressly waived . . . by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will, or the surviving husband, widow or any heir-at-law or any of the next of kin, of such deceased, or any other party in interest." (L.1892 ch. 514) We see no relevancy to the question in the instant case in these terms of the amended New York statute.

In re Will of Hunt, 1904, 122 Wis. 460, 100 N.W. 874, involved a statute which rigidly forbade a physician to testify to information obtained in a professional capacity and which made the privilege personal to the patient and authorized no waiver by anyone for him. It was contended in the case that the statute had no application to a contest over the probate of a will. The Supreme Court of Wisconsin refused to adopt this position, and in so doing said:

"The purpose of that statute is personal. It is to protect the patient himself from disgrace or chagrin. Its effect on property rights or estate is only incidental. Citing authorities Such reasons do not cease upon the death of the patient. His memory and good name are still subject to...