Estes v. McGehee

Decision Date15 October 1923
Docket Number23442
Citation133 Miss. 174,97 So. 530
CourtMississippi Supreme Court
PartiesESTES v. MCGEHEE et al

Division B

(Division B.) January 1, 1920

1 WILLS. Testimony that testator was dominated necessary to submission of Question of undue influence.

In order for the question of undue influence to be submitted to the jury, there must be some testimony upon which the jury could find that the will of the testator did not speak per real mind or intention, but that of the person who dominated and influenced her.

2 WITNESSES. Physician held not precluded from giving nonexpert testimony as to facts and circumstances affecting testamentary capacity of patient, based on conversations derived from business and social relations.

Section 3695, Code of 1906 (section 6380, Hemingway's Code), does not preclude a person from testifying as a nonexpert witness to facts and circumstances based upon relations and conversations with the testator, derived solely from business and social relations, disconnected and segregated from the relation of physician and surgeon, and from giving his opinion, based upon these facts, as to testamentary capacity.

HON. J G. McGOWAN, Chancellor.

APPEAL from chancery court of Panola county, HON. J. G. MCGOWAN Chancellor.

Suit by R. E. Estes against Mrs. Virginia W. McGehee and others. From a decree for defendants, plaintiff appeals. Affirmed.

Affirmed.

Holmes & Sledge, for appellant.

I. If there is one proposition of law that has been fully and finally settled by the courts of our state, it is that under section 3965 of the Mississippi Code of 1906, Hemingway's Code, section 6380. A family physician is prohibited from testifying without the consent of his patient. The patient in this case, Mrs. Cornelia Wallace Estes, was dead, and this contest was waged over an instrument of writing purporting to be her last will and testament. Of course, the prohibition of said section 3695, Code of 1906, against the disclosure by a physician or a surgeon--survives the death of the patient and could not be waived by the patient's heirs, executor, or administrator. McCaw et el. v. Turner, et al., 80 So. 705. The trial court committed grave error in permitting Dr. A. P. Alexander, the family physician of the said Mrs. Cornelia Wallace Estes, deceased, to testify at all, either as to her condition mentally or otherwise, either before or in the absence of the jury, over the objection of appellant. In the instant case, the physician was questioned by the court to ascertain whether he had knowledge by reason of the relation of physician and patient, and, we believe if it were so acquired, it ought to be excluded. United States Fidelity & Guaranty Company v. Hood, 87 So. 115. When it is shown that the information gained and obtained by the physician from the testatrix is based, as a physician, and especially when the physician himself admits that as to the question of mental capacity it would be hard to segregate his opinion as to same obtained as such physician and otherwise, such evidence is inadmissible. United States Fidelity & Guaranty Company, supra; Hunter v. Hunter et al., 90 So. 440.

II. The court erred also in permitting Dr. B. N. Ward to testify as to the matters and things related by him as to the mental capacity of the said testatrix. We are aware that this court has not passed upon the question as to whether or not the Privilege Communication Statute has been repealed by implication by the enactment of law creating a Bureau of Vital Statistics and we have noted the opinion rendered by the supreme court in the case of Hunter v. Hunter, supra, and in which said opinion the court said "should a case arise where proof by certificate under this act is offered in evidence, we will then determine to what extent, if any, the act repeals the said section 3695, Code of 1906, section 6380, Hemingway's Code, known as the Privilege Communication Statute."

We submit that this law, sections 4869 to 4874, Hemingway's Code, does not repeal the Privilege Communication Statute unless it is repealed to the extent, as set forth in the opinion in the said cause of Hunter v. Hunter, supra, "that a registrar's certificate made up from the statistics or information obtained from the attending physician of the patient may be introduced in evidence to show the character of sickness or cause of death of the patient."

III. The question of undue influence should have been submitted to the jury in this case, since the testator is shown to have been in a state of physical feebleness or mental weakness when the will was executed. 28 R. C. L. 139, section 92, Wills. The appellant was entitled in this case to have submitted to the jury the question of whether or not the influence exercised by his sister over his mother was not an undue influence, an influence which controlled the mental operation of the testatrix and whether or not it overcame her power of resistence, obliging her to adopt the will of said daughter rather than her own, and whether or not the influence of the said Caroline Wallace Estes over her mother did not produce a disposition of property which the testatrix would not have made if left freely to act according to her own pleasure.

Montgomery & McClure, for appellees.

I. THE TRIAL COURT SHOULD HAVE GRANTED A PEREMPTORY INSTRUCTION ON BEHALF OF THE PROPONENTS. Taking all of the testimony of contestants' witnesses as true, there was not sufficient evidence in the case to sustain any issue in favor of the contestant which was raised by the pleadings in the case.

If the contestant in this case failed to establish his case to such an extent that a peremptory instruction might properly have been given against him by the trial court, he cannot complain of any alleged error the trial court might have committed, either in the introduction of evidence or in granting or refusing any instructions in the case. Blackwell v. Graham, 74 Miss. 595; Fletcher v. Sovereign Camp, 81 Miss. 249; Barringer v. Nesbit, 1 S. & M. 22; Davis v. Black, 5 S. & M. 226; McMullen v. Mayo, 8 S. & M. 298; Ryan v. Cargill, 24 Miss. 540; Cogan v. Frisby, 36 Miss. 178.

II. TESTAMENTARY CAPACITY. The rule is that the mental capacity of the testatrix is to be tested as of the date of the execution of the will and temporary or intermittent insanity or mental capacity does not raise a presumption that it continued to the date of the execution of the will. Scally v. Wardlaw, 123 Miss. 875 (878); Lum v. Lasch, 93 Miss. 81; Moore v. Parks, 122 Miss. 301; 1 Alexander on Wills, p. 327; 1 Schouler on Wills, p. 134.

III. THE TESTIMONY OF DR. A. F. ALEXANDER WAS COMPETENT AND WAS PROPERLY ADMITTED IN EVIDENCE BY THE TRIAL COURT. Dr. Alexander was not introduced as an expert witness. He had known Mrs. Estes for about twelve years before her death. The witness and Mrs. Estes were neighbors, were members of the same church, and trustees for the church. He visited frequently in her home in a social way, at other times he was in her home in a professional way on visits to her husband, Capt. Estes, and her daughters, at which times he always saw Mrs. Estes and conversed with her. He had also some business transactions with the testatrix, one involving the execution of notes and a deed of trust for a loan which the Christian Church of Como had negotiated from the Missionary Society of that church in the year 1916, about a year subsequent to the date of the execution of the will. From his long association and intimate acquaintance with Mrs. Estes in a social and business intercourse, wholly disassociated from, and independent of any professional relations with her, the witness was easily able to form an opinion of her mental condition at the time of the execution of the will, which opinion was, that she was of sound mind.

It will be noticed that the witness based his testimony solely upon knowledge and information derived from social and business intercourse with the testatrix, entirely independent of, and wholly dissociated from any professional relations. In other words the witness was not called upon to, and did not in his testimony divulge any "communication made to him by a patient under his charge or by one seeking professional advice," contrary to section 6380, Hemingway's Code (section 3695, Code of 1906). The statute does not disqualify a physician from testifying to any fact within his knowledge, unless expressly or by necessary implication, he is prohibited from doing so by the provisions of the statute. William Lourie Co. v. McCullough, 90 N.E. 1014, 92 N.E. 337. The rule of statutory construction has been succinctly stated by this court in the case of Moore v. Rowe, 53 So. 626, as follows: "In construing a statute the evil to be remedied must be kept in view; and its construction must be made to accomplish the purpose intended, if not violative of its plain provisions." The evil sought to be remedied by the legislature in the enactment of the statute in question, was the disclosure by a physician or surgeon of any communication made to him by his patient, or by one seeking professional service. It was never intended to disqualify a physician generally in respect to the condition of a person who had at some time been a patient, where the physician speaks from knowledge acquired when no relation of physician and patient obtained, and where his testimony did not involve a disclosure of any privileged communication. Only the secrets of the sick chamber were protected. Bower v. Bower, 142 Ind. 194, 41 N.E. 523.

The privilege extends only to matters which are in their nature confidential, and does not prevent a witness from testifying as to matters, the disclosure of which violates no breach of professional confidence. The following cases contain...

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  • Keeton v. State
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    ...before the homicide; it applies alone to knowledge acquired as the result of the relation of physician and patient. In Estes v. McGehee, 133 Miss. 174, 97 So. 530, testamentary capacity was involved. The court held that statute did not preclude a physician from testifying to facts and circu......
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