85 N.E.2d 496 | Ind. | 1949
This is an appeal from a judgment setting aside a deed executed by Amos W. Beach on June *234 24, 1944, to the appellant, Audrey L. Stayner, for 120 acres of land in Steuben County and quieting the title of the appellees to said real estate. The cause was tried by the court without a jury, and a general finding was made for all appellees upon the issues joined on various paragraphs of complaint which sought to quiet title to the real estate, and to set aside the deed thereto by reason of fraud and undue influence practiced upon the grantor. A commissioner was appointed to execute a deed to the appellees in conformity with the judgment.
The motion for a new trial, the overruling of which is the error assigned on appeal, challenges the sufficiency of evidence to sustain the finding, and the rulings of the trial court in permitting two physicians who attended the grantor to testify as to his physical and mental condition as observed by them during the time they were his physicians, after the appellees, who were the grantor's only surviving heirs, and the administrator of the estate of the grantor had waived objections as to the competency of the physicians.
On appeal, when the sufficiency of the evidence is questioned, this court will disregard conflicting evidence, and assume that the evidence to support the finding is true, "and will give 1. to it every favorable inference which may be reasonably and fairly drawn from it. Mazelin v. Rouyer (1893),
The deed purported to convey to the appellant, Audrey L. Stayner, a stranger to his blood and estate, the remainder in fee, subject to the life estate of the grantor, and all the grantor's interest in the crops and "his interest in all personal property now located on said farm, including household furniture and goods located in said dwelling house and other goods, including farm tools and other small articles on said farm." The deed provided the grantee should keep and furnish a home for the grantor, pay the cost of his last illness, $500 for funeral expenses and erect a monument to cost not less than $350, and to have inscribed thereon the name of the grantor and his former wife, with dates of the birth and death of each. The market value of the farm was $7,000, on which there was a mortgage lien in the sum of $675. The grantee cared for the grantor for a period of thirty-four days after he left the Cameron Hospital on July 6th. The consideration for the conveyance was so grossly inadequate that it shocks the conscience of the court. Such transactions have been condemned by this court.
In Ashmead v. Reynolds (1893),
"In Wray v. Wray,
". . .
"In Allore v. Jewell,
The trial court properly found the deed was procured by undue influence and fraud. The finding is sustained by the evidence and is not contrary to law.
There was no error in permitting the two physicians to testify as to the physical and mental condition of the grantor. Under the common law communications between a physician and 3, 4. patient were not privileged. Myers v. State (1922),
"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." Section 2-1714, Burns' 1946 Replacement (Acts 1881 (Spec. Sess.), ch. 38, § 275, p. 240.)1 *237
It has been consistently construed not to create an absolute incompetency, but a privilege for the benefit of the patient, which he may waive. Penn Mutual Life Ins. Co. v. Wiler
(1885),
The purpose of the statute creating the privilege has 5-7. been well stated by this court in Penn Mutual Life Ins. Co. v. Wiler (1885), supra:
"The purpose of the statute is not the suppression of truth needed for reaching correct results in litigation, though this may sometimes incidentally occur (as it may also in other instances of exclusion on the ground of wise policy), but the purpose is the promotion and protection of confidence of a certain kind, the inviolability of which is deemed of more importance than the results sought through compulsory disclosure in a court of justice. Notwithstanding the absolutely prohibitory form of our present statute, we think it confers a privilege which the patient, for whose benefit the provision is made, may claim or waive. It gives no right to the physician to refuse to testify, and creates no absolute incompetency. To hold otherwise would result in many cases in obstructing justice without subserving the purpose of the statute. . . ."
The effect of the statute in prohibiting the ascertainment of truth in many controversies has often subjected its policy to strong criticism. 8 Wigmore on Evidence, § 2380A (3rd Ed.). Because of this result, and under the rule that statutes in derogation of common law will *238
be strictly construed, its prohibitions are not to be extended by implication. Myers v. State (1922),
Upon principle, if the patient during his lifetime could waive the privilege, there is no reason why his heirs or personal 8. representative should not waive the privilege after his death.
The following language of Professor Wigmore in his treatise onEvidence (3rd Ed.), Vol. 8, § 2391, p. 840, is particularly applicable to the facts in this appeal:
"The personal representative of the deceased may waive the privilege. One who is entrusted with the management of the deceased's property may surely be trusted to protect the memory and reputation of the deceased, in so far as it is liable to injury by the disclosure of his physical condition when alive. It is incongruous to hold that the person who manages the litigation of the deceased's property-interest has no power to waive rules of evidence for the purpose of advancing those interests. The power of an heir may also be conceded, if we remember that the heir, first, is at least equally interested in preserving the ancestor's reputation, and, secondly, has an equal moral claim to protect the deceased's property-rights from unwarranted diminution. The futility, under the circumstances, of predicating any privilege is the more apparent when (as in the usual case) the issue turns upon the fact of the testator's sanity, which is so bruited publicly in the litigation that the pretense of preserving secrecy is a vain one. . . ." For an exhaustive discussion of the Indiana authorities, see Vol. 23 Indiana Law Journal (April, 1948), p. 295 et seq. *239
The case of Studabaker v. Faylor (1912),
"Furthermore, under authorities above cited, the right to waive the privilege of confidential communications, after the death of Mrs. Faylor, in litigation affecting her estate, was lodged in those who represented her and stood in her place. Even if appellant could be considered her representative, he has, as we have seen, waived his right to object. It is generally conceded that heirs may waive this privilege. 4 Wigmore, Evidence § 2391. However, the heirs or devisees seeking to overthrow a will may not waive it as against other heirs or devisees. Towles
v. McCurdy, supra [
In actions involving the validity of a will, the personal representative may waive the privilege in support of his trust.Morris v. Morris (1889),
In this appeal, both the personal representative of the deceased and all of his heirs at law waived the privilege. Although the litigation involved the real estate, the 9. administrator had an interest in recovering it back for the heirs, since in the event the personal property becomes insufficient to pay debts and claims of the estate, the real estate would be subject to being sold to pay debts and claims. The same instrument which conveyed the real estate also transferred title to personal property. The children of the intestate would be presumed to have a greater interest in protecting the memory of their father than any strangers in blood, who, in this case, were guilty of fraud upon the intestate. To permit strangers to the estate to close the door to the ascertainment of the truth would encourage the perpetration of the grossest kind of fraud upon aged and infirm persons. It cannot be said that grantees, who are strangers to his estate, represent the decedent or his interests. The evidence was properly admitted.
Judgment affirmed.
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