Hunter v. Hunter

90 So. 440 | Miss. | 1921

Holden, J.,

delivered the opinion of the court.

This is a contest of the will of John G. Hunter, deceased, by the appellees, kinsmen. After the will was probated in common form the appellees filed a caveat upon which an issue of devisavit vel non was submitted to a jury, which found in favor of the contestants upon the ground that the testator was of unsound mind and mentally incapable of making a will at the time it was executed. From this verdict and decree this appeal is prosecuted.

At the trial testimony was submitted, by both sides, as to the testator’s mental capacity; there being a conflict in the proof on this issue before the jury.

The contestants were permitted by the court, over the objection of the proponent, to introduce the testimony of Dr. J. H. Rush, the physician in charge of the hospital in which the testator was a patient under his care for about two weeks immediately prior to his death. The testimony of Dr. Rush was, in substance, that the deceased Hunter was a patient in his hospital for several weeks before he died; that the deceased was under his supervision and treatment, which• enabled him (the doctor) to know the physical and mental condition of the deceased; and that ' the deceased, at the time of the execution of the will which was done while in the hospital a few days before his death, was afflicted with “senile dementia/’ and that the testator was not mentally capable of making a will.

The lower court also granted an instruction to the contestants directing the jury to consider the testimony in the case, given by Dr. Rush, with reference to the testator being afflicted with “senile dementia/’ at the time of the execution of the will, and that in determining the question of mental capacity of the testator they should consider this evidence given by Dr. Rush. The instruction had the effect of calling special attention to the testimony of Dr. Rush with reference to the condition of the testator as to “senile dementia.”

The court erred in admitting the testimony of Dr. Rush; it was a privileged communication of the patient under his charge, which could not be disclosed, except at the instance of the patient. Section 8695, Code of 1906 (section 6380, Hemingway’s Code); Y. & M. V. R. Co. v. Messina, 109 Miss. 143, 67 So. 963; and McCaw v. Turner, 88 So. 705.

We think the McCaw case, supra, has entirely and finally settled the question as to the admissibility of testimony which discloses privileged communications between physician and patient; that is, so far as the privileged communication statute, supra, is concerned.

But the argument is made here by the appellees that this’ privileged communication statute has been repealed by implication by the enactment of the law creating a Bureau of Vital- Statistics, said law being sections 4869 to 4874, Hemingway’s Code. Section 4872 (section 5) of this law provides:

“Tliat any copy of the records of birth, sickness or death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima-facie in all courts and places of the facts therein stated.”

The point made by counsel for appellees does not arise in the instant case, because no certificate of the registrar showing the death or sickness of the testator ivas offered as evidence in the case. Should a case arise Avhere 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 8695, Code of 1906, section 6380, Hemingway’s Code, known as the “privileged communication” statute.

So far as the question is before us in the present case, we hold that the privileged communication statute is not repealed by the Vital Statistics Act, unless it is repealed to the extent that a registrar’s certificate made up from 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. But we do not decide at this time how far and to what extent the recent act modifies or annuls the former statute, because the question does not properly arise in this case.

The appellee contends further that the judgment ought to be affirmed because the other proof for the contestants in the case was sufficient to sustain the verdict of the jury and that the verdict would have been for the contestants even though the testimony of Dr. Bush had been excluded and the instruction directing the attention of the jury to the testimony of Dr. Kush as to “senile dementia” of the testator had not been given.

We are unable to agree with counsel in this regard. Our view of the record is that the strong testimony of Dr. Rush was vital, and with the instruction of the court pointing the jury to it we are led to believe that the jury was substantially influenced by this testimony in reaching its decision.

For the reasons given, the decree of the lower court is reversed, and the cause remanded for a new trial.

Reversed and remanded.