Winters v. Winters

• Decision Date: 11 May 1897
• Citation: 71 N.W. 184,102 Iowa 53
• Parties: WINTERS v. WINTERS.
• Court: Iowa Supreme Court

102 Iowa 53

71 N.W. 184

WINTERS

v.WINTERS.

Supreme Court of Iowa.

May 11, 1897.

Appeal from district court, Henry county; H. C. Traverse, Judge.

M. F. Winters died January 21, 1895. He left, him surviving, his widow, Catherine Winters, and his brother and only heir, John C. Winters. The widow offered for probate a paper purporting to be his last will, leaving to her all his property, and naming her as executrix without bond. The brother filed objections thereto, alleging want of testamentary capacity and the exercise of undue influence. There was a trial to jury, verdict and judgment for proponent, and contestant appeals. Reversed.Babb & Withrow and Blake & Blake, for appellant.

McCoid & Finley and T. M. McAdam, for appellee.

LADD, J.

The will in controversy bears date January 2, 1895, 19 days prior to the death of Winters. For some weeks previous to December 24th preceding his death, he had been at Hot Springs, Ark., and while there was treated for his ailments by A. F. Sanders, a practicing physician of that place. The contestant took the deposition of this doctor, and, when he offered to read it in evidence, the proponent objected to the interrogatories as incompetent. This objection was sustained by the court, and the testimony of the witness excluded. No objection was made at the time of the taking of the deposition, and no written motion or exception with reference thereto filed. The only questions argued relate to the exclusion of this evidence.

1. The appellee moves to strike from the abstract that part containing the deposition of Sanders on the ground that the same is not identified in the skeleton bill of exceptions. Such bill directs the clerk to insert the deposition or oral testimony “as shown by the minutes of the shorthand reporter taken upon said hearing.” This refers to the evidence with sufficient certainty. Yount v. Carney (Iowa) 60 N. W. 114. The evidence was taken down in shorthand by the official stenographer, and, after its introduction, was immediately certified as required by law, filed, and thereby became a part of the record. No order therefor was necessary. Bunyan v. Loftus, 90 Iowa, 124, 57 N. W. 685. The notes of the reporter clearly identify this deposition. The errors on the admission or the exclusion of evidence were, therefore, properly preserved. Fleming v. Stearns, 79 Iowa, 258, 44 N. W. 376;Hood v. Railway Co. (Iowa) 64 N. W. 261. Only two assignments of error are argued, and appellee urges that these are not specifically stated. They are stated, however, with as much particularity as the circumstances of the case will permit.

2. To the interrogatories in the deposition of Sanders concerning the condition of the deceased, and his opinion of his mental condition, derived while acting as his physician, the objection of incompetency was urged and sustained. It is insisted that this ruling was erroneous, because made for the first time at the trial. No exceptions to depositions other than for incompetency or irrelevancy can be regarded unless made by motion before the case is reached for trial. Code, § 3751. The objection of incompetency, without more, goes to the evidence, and not to the witness. White v. Smith, 54 Iowa, 233, 6 N. W. 284;Ball v. Railway Co., 74 Iowa, 132, 37 N. W. 110. Where the witness is made by the statute incompetent to testify at all, objection must be made when he is sworn. Watson v. Riskamire, 45 Iowa, 231. In Burton v. Baldwin, 61 Iowa, 283, 16 N. W. 110, it is held that objection to the testimony of a witness to personal transactions or communications, prohibited by section 3639 of the Code, is timely if made during the trial. This section is so similar to section 3643 of the Code that the ruling must control in this case. It seems to be there held that if the witness is only prohibited from testifying with respect to some particular matter, but is otherwise competent, then the objection on the ground of incompetency may be urged at the time the deposition is offered in evidence. While the opinion in Burton v. Baldwin does not refer to the ruling in Greedy v. McGee, 55 Iowa, 759, 8 N. W. 651, the latter must be regarded as overruled. It follows that the objection was made in apt time.

3. The important question in this case is whether the deposition of Dr. Sanders may be received in evidence when offered by the contestant. Section 3643 of the Code is as follows: “No practicing attorney, counselor, physician, surgeon, minister of the gospel, or priest of any denomination shall be allowed in giving testimony to disclose any confidential communication properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice and discipline. Such prohibitions shall not apply to cases where the party in whose favor the same are made waives the right conferred.” On the authority of Denning v. Butcher (Iowa) 59 N. W. 69, this evidence, if offered by the proponent, should have been received, though no executor had been appointed. Ought it to be rejected when offered by an heir at law? At common law confidential communications to a physician were not privileged, and they are only so made by statute. Those to an attorney, however, were privileged, and it was held that the attorney might not divulge without the consent of the client while living, but that, after his death, in a contest between a stranger and an heir, devisee, or personal representative, the latter might waive the privilege and examine the attorney concerning the confidential communications, though the stranger was not permitted to do so; and, in a controversy between heirs at law, devisees, and personal representatives, the claim that the communication was privileged could not be urged, because, in such a...