Towles v. McCurdy

• Decision Date: 24 May 1904
• Docket Number: 20,330
• Citation: Towles v. McCurdy, 163 Ind. 12, 71 N.E. 129 (Ind. 1904)
• Parties: Towles et al. v. McCurdy et al
• Court: Indiana Supreme Court

71 N.E. 129

163 Ind. 12

Towles et al. v. McCurdy et al

No. 20,330

Supreme Court of Indiana

May 24, 1904

From the Hendricks Circuit Court; T. J. Cofer, Judge.

Action by Mary E. McCurdy against Julia A. Towles and others to set aside the will of Elijah M. Tinder, deceased. From a judgment for plaintiff, two defendants appeal.

Reversed.

G. W Brill, G. C. Harvey, R. W. McBride, C. S. Denny and G. L Denny, for appellants.

E. G Hogate and J. L. Clark, for appellees.

Dowling, J. Hadley, J., did not participate in this case.

OPINION

Dowling, J.

A writing purporting to be the will of Elijah M. Tinder, deceased, was duly presented for probate in the Hendricks Circuit Court, February 24, 1902. No action was taken in the matter, but on February 26, 1902, Mary E. McCurdy, one of the appellees, prior to the admission of the supposed will to probate, filed her objections thereto in the manner and form required by the statute. The grounds upon which the probate was resisted were alleged unsoundness of the mind of the said Elijah M. Tinder, that the said will was unduly executed, and that it was executed under undue influence. Process was issued for the appellant Julia A. Towles, and was served upon her. No further proceedings were taken in the cause until October 18, 1902, when William H. Tinder, one of the defendants, filed a disclaimer, so-called. Two days afterward the other defendants, Julia A. Towles and Edward E. Tinder, filed an answer in denial. The cause was tried by the court without a jury, and a finding was made against the validity of the will. Judgment was rendered refusing the probate thereof. The appellants moved to set aside the submission of the cause and to render judgment that the will be admitted to probate. Their motion was overruled. They asked for a new trial, and this motion also was overruled. Error is assigned upon these decisions.

1. The specific error of law assigned as a reason for a new trial was the ruling of the court admitting the testimony of Dr. C. A. White, the physician of the decedent, concerning the physical and mental condition of his patient, and as to various facts relating thereto, observed and learned by the physician while treating the decedent during his last illness and on former occasions. The contest over the will was between the children of the decedent, one of whom, Edward E. Tinder, was the sole legatee and devisee named in that instrument.

The point is made by counsel for appellants that the witness was not competent to testify to any fact of which he acquired knowledge in his capacity as a physician while treating or attending upon the decedent. The general rule of the incompetency of physicians as witnesses under such circumstances is admitted by the appellees, but their counsel contend that as this is a controversy between the heirs and devisees of the decedent, all of whom claim under him, the rule does not apply. The provision of the statute is in these words: "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." § 505 Burns 1901. Communications from a patient to his physician were not privileged at common law but they have been made so by statute in many jurisdictions. 23 Am. & Eng. Ency. Law (2d ed.), 88, and cases cited in note 7. The construction given to the statute forbidding the disclosure in evidence against the will of the patient of communications made to the physician in the course of his professional business has been much broader than the language of the act, and the prohibition has been held to include not only communications and advice, but all information acquired by the physician while treating or attending the patient in his professional capacity. In Masonic, etc., Assn. v. Beck (1881), 77 Ind. 203, 209, 40 Am. Rep. 295, in commenting on the proposition of counsel that the statute applied only to matters confided to the physician, this court said: "We think the statute ought to have, and was designed to have, a much broader scope. The relation of physician and patient, no matter what the supposed ailment, should be protected as strictly confidential, subject only to the right of the patient to waive the restriction; or, if the patient shall have died, then subject to the choice of the party who may be said to stand in the place of the deceased, and whose interests may be affected by the proposed disclosure. His admission to the bedside of the sick one may enable the experienced and skilful practitioner to discern more of the patient's condition and of the cause which brought it about, than the patient himself could tell, or would be willing to reveal; and whether, therefore, the information which he gets is obtained in one way or the other should make no difference in the application of the rule." Upon the authority of this and many other similar decisions in this State,...