48 App. D.C. 495 | D.C. Cir. | 1919
delivered the opinion of the Court:
Caveator offered as a witness T)r. Sowers, who had been the family physician of testator for thirty-seven years, and who,
This statute, in broad terms, renders a physician an incompetent witness in the District of Columbia to testify concerning confidential information acquired while attending a patient in his professional capacity. To this sweeping rule 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. The court permitted the witness to testify after cautioning him as follows:— “I may say to you, Doctor, that you must carefully avoid, in answering any of these questions, stating anything that Stilson Hutchins may have said to you, or anything that you may have learned by any examination that you made of him.” A colloquy followed between counsel and the court, which resulted in further caution from the court to the effect that the witness should discriminate between competent and incompetent facts and only testify to that which was not within the inhibition of the statute.
It is difficult for a physician who, as in this instance, acquired his knowledge from professional contact with his patient, under any circumstances to qualify as a witness within the statute to express an opinion as to the mental capacity of his patient to make a will. Any opinion he may form, of necessity, must be affected, more or less, by knowledge of the physical and mental condition of the patient professionally acquired. But, assuming that he might be able to form an opinion based upon facts independent of the forbidden sources, it is for the court,
The depositions of certain physicians were offered by caveatees, and objected to by counsel for caveator as incompetent under sec. 1013 of the Óode [30 Stat. at L. 1358, chap. 851].' The trial justice, sustaining the objection, said: “During the taking of the caveator’s testimony certain physicians who had attended the deceased were offered as witnesses. The caveatees, by their attorneys, then objected that a physician was prohibited from testifying, no matter what the nature of the illness may have been. This court sustained the caveatees’ contention in that behalf and held that the statute prohibited a physician from testifying as to first, any communication made by the patient with reference to any ailment or disease, or supposed ailment or disease; or, second, any knowledge obtained by personal examination of such patient. This ruling became the law of the case, and the caveator was restricted under it in the presentation of his evidence. The court considers the previous ruling to be the law of this ease, in view of the fact that the caveator was restricted by it; and, since such restriction was imposed at the instance and insistence of the caveatees, they are clearly estopped to question the correctness of the ruling as constituting the law of the case.”
It is difficult to understand why the court permitted Dr. Sowers to testify to such matters as he might deem competent, and refuse to examine the depositions offered by the caveatees to ascertain whether or not they contained testimony which did not come within the inhibition of the statute. The inconsistent position thus assumed by the court was highly prejudicial to the caveatees. Portions, at least, of these depositions were
We now approach a more difficult question. It is urged by counsel for caveatees that caveator is estopped by his own conduct to question the mental capacity of the testator. Caveator pitched his case upon the continued mental incompetency of testator from February 1, 1904, the date when he had a stroke of paralysis, until the date of his death in 1911. During this period, ’ caveator conducted extensive business transactions with and on behalf of his father. During this time he took deeds to real estate from his father and assignments of stock in corporations, received extensive gifts in money and other things, and represented his father, both as attorney in fact and as his legal adviser in transactions involving directly and indirectly the entire estate of the testator. Caveator testifies that, when these transactions were made, he knew that his father was mentally incompetent to make a contract or to transact business, but that he accepted the conveyances and money and still insists upon his right to retain the property thus acquired.
The power of the caveatees to object to caveator’s conduct, as affecting his right to caveat the will, presents no difficulty. It is true that the caveatees are only executors eo nomine until the probate of the will, and not in privity with the testator; but it must be remembered that Walter Hutchins appears on his own behalf. He is not only a beneficiary under the will here involved and all other wills of the testator, but an heir at law. Hence, if there be a will proved, he will be in privity with the testator by representation; but, will or no will, he is in privity by blood, and stands in that respect in equal relation with the caveator.
This wholesome rule of procedure has been the law of this jurisdiction almost from the organization of this court. It was applied in Ohio Nat. Bank v. Hopkins, 8 App. D. C. 146, and in Downs v. Downs, 23 App. D. C. 381, 388. In the latter case, Downs had registered as a voter and had voted in the State of Maryland. Subsequently he brought a suit for divorce, alleging his citizenship in this District. The trial court treated the issue as one of fact as to whether lie had perjured himself in Maryland or was perjuring himself here; but this court, in closing the door against him and refusing him a hearing, said: “.Reliance is placed on the case of Thomas v. Warner, 83 Md. 14, 34 Atl. 830, as establishing the conclusion that under such conditions as are manifested in the record before us the appellee would not have been admitted to the exercise of the right of suffrage in Maryland as not having acquired the required residence in that State; but the plain answer to this is that he has in fact been admitted to the exercise of the right of suffrage. Whether lie has been so admitted through fraud and fraudulent representations on his part, or in consequence of a fair and honest showing that his true residence was in that State, can make.no difference in this case. If it was through fraud rnd fraudulent representations that he procured himself to he regarded as a bona ff.de resident of the State of Maryland, he should not now be heard to establish his own infamy, although
There, the only common subject-matter was the single issue of the citizenship of Downs. Here, the subject-matter is one,— the estate of Stilson Hutchins. If, as caveator now contends, the testator was mentally incompetent to make a valid contract between 1904 and the date of his death in 1911, the law required the conservation of his estate, after providing for his own needs and the needs of those dependent upon him during his lifetime, for the benefit of his heirs, two of whom are parties to this action. On the other hand, the law would not sanction the conduct of anyone, much less a son, trafficking in the estate and taking title to any part of it by deed, gift, or otherwise. If the testator, by reason of his mental condition, was legally disqualified to make contracts affecting his estate, all persons dealing with him were equally disqualified. In the present case, the caveator testifies that, during the time he was conducting these transactions, he was aware of his father’s mental incapacity. Notwithstanding this, he now insists that the property thus acquired not only belongs to him, but that he intends to retain it. In view of this testimony, and applying by analogy the Downs Case, whether, when he procured the property from testator, testator was competent or incompetent, “can make no difference in this case.” If, when he procured it, his father was capable of making a valid contract, then caveator is not in position to ask the court to cancel the will; if testator was incompetent oand caveator acquired it with knowledge of this fact, “he should not now be heard to establish his own infamy.” The course of conduct pursued by caveator, we think, is such that he has foreclosed himself from maintaining an action challenging the validity of the will based upon the mental incapacity of the testator. His position is so inconsistent that the
The judgment is reversed with costs, and the cause is remanded for further proceedings.
Reversed and remanded.