52 Ind. App. 171 | Ind. Ct. App. | 1912
Appellees, all the heirs of Catherine Faylor, deceased, sued appellant to set aside a deed of conveyance of real estate made to appellant by Catherine Faylor, on the grounds that she was insane when the deed was made and that the conveyance was obtained through fraud of appellant. They also asked that their title be quieted to this real esate, and they be put in possession.
This appeal is taken on a reserved question of law as to the correctness of the court’s action in allowing Dr. Cook, a witness at the trial, to testify, over the objection and exception of appellant, as to information gained as a physician while treating Mrs. Faylor.
This ease was appealed to this court before and was transferred to the Supreme Court. See Studabaker v. Faylor (1908), 170 Ind. 498, 83 N. E. 747, 127 Am. St. 397. On referring to the record in that appeal, we find that Dr. Cook was permitted at that trial, without objection from any one, to testify to information gained while a professional relation existed between him and Mrs. Faylor. We do not need in this case to decide whether appellant had any right to object to his testimony on the ground of privilege, though many authorities uphold the doctrine that he had not, since he is not the personal representative of Mrs. Faylor (Lockwood v. Lockwood [1887], 56 Conn. 106, 110, 14 Atl. 293), and the privilege is personal. 3 Wigmore, Evidence §§2192, 2196; 4 Wigmore, Evidence §§2320, 2386. If appellant had the right to object to the admission of the evidence, such right has been waived by failure to object at the former trial, thus permitting the communications to become public.
As before said, when once the matters ascertained in a privileged relation are published to the world without objection, no reason remains to uphold the bar of privilege. This suit was instituted nearly ten years ago, and the cause has been four times tried, and twice appealed. It seems to us that no good purpose would be served by a further trial, and that justice demands an end of litigation in this cause.
Judgment affirmed.