Francis S. Browne v. W. Carroll Brooke, Emma Smallzel Wacker, and Eleanor N. Jenkins

236 F.2d 686

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 16, 1956
• Docket: 12792_1
• Status: Published

Opinions

FAHY, Circuit Judge.

In the District Court a trial was had before a jury on issues framed as to the validity of an instrument dated November 13, 1952, offered by Francis S. Browne, appellant, as the last will and testament of Mildred Nyman, deceased. A caveat had been filed by W. Carroll Brooke, an appellee, cousin of the decedent and a devisee and legatee named in an earlier will. Eleanor N. Jenkins, niece of deceased, and Emma S. Wacker, another relative and devisee and legatee under the earlier instrument, both of whom are also appellees, joined in the caveat. The jury returned a verdict that decedent at the time of the making of the purported will of November 13, 1952, was not of sound and disposing mind and capable of executing a valid deed or contract. The verdict also included other special findings supporting the caveat but these need not be considered; for if the verdict that decedent was of unsound mind is not impaired by any error, as we hold to be the case, then the order denying probate, which is the order appealed from, should be affirmed.

The only serious question about the validity of the jury’s verdict of unsoundness of mind has to do with the admission in evidence of the testimony of Dr. Winfred Overholser to the effect that decedent was of unsound mind when he examined her in February, 1952. The purpose of the examination was to enable the doctor to prepare a report on Miss Nyman’s mental condition in connection with proceedings to appoint a conservator for her. The question is whether the doctor’s testimony was privileged and therefore inadmissible unless the privilege was waived. Since we find for the reason now to be stated that the testimony was not privileged we do not reach the question of waiver. We think it was not privileged because under § 14— 308, D.C.Code (1951), the doctor-patient privilege in this jurisdiction extends only to information the physician acquires “in attending a patient in a professional capacity.” This does not include information obtained merely by an examination. Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398. We assume that the person examined, if capable of forming a judgment on the subject, must understand that the physician is not attending or treating him.¹ If not capable of forming such a judgment the question of the physician’s status must be determined objectively.

Here the trial judge made preliminary inquiries to ascertain if Dr. Overholser had attended and treated the decedent or if she could have so believed, so as to give rise to the privilege. We reproduce in the margin a portion of the relevant parts of the record which shows the court’s attention to this problem.² Upon the basis of his inquiries as to the possible professional relationship of the witness to the decedent, and the answers of the witness, the learned trial judge admitted the opinion evidence. We cannot say from the facts thus developed that he erred in ruling that the testimony was not subject to the privilege. Finding no error in -this or in other respect, the order is Affirmed.

1 . See Smart v. Kansas City, 208 Mo. 162, 105 S.W. 709, 716-718, 14 L.R.A..N.S., 565 and cases cited; Weitz v. Mound City Ry., 53 Mo.App. 39. Cf contrary import, see In re Williams’ Estate, 186 Wis. 160, 202 N.W. 314.

2 . “By The Court: “Q. I take it from what you have already said that you were undertaking to form an opinion to express to somebody else respecting the condition, that you observed this person to be in. A. That is correct, Your Honor.

“Q. That was definitely your understanding of the situation. Now, was there anything said or done to you that indicated that Miss Nyman regarded you as her physician and she as your-patient? A. Oh, no. I am not at all sure that she even knew I was a physician.

“Q. I heard you say that. A. Yes. And áhe said nothing to me — she asked me no questions, for example, as to what she ought to do about herself or her condition at all. She asked for no advice.

“Q. Well, you are perfectly clear in your own mind, at least, then, that there was not the normal patient-physician relationship? A. I am perfectly clear on that, Your Honor, yes, sir.

“Q. And so far as you could observe she was under no misapprehension that there was that relationship? A. I feel very safe in saying that she had no such idea.

“The Court: I shall admit the Doctor’s testimony.”