Opinion
October 2, 1950 —
November 8, 1950.
APPEAL from a judgment of the county court of Green county: HAROLD J. LAMBOLEY, Judge. Reversed.
For the appellant there was a brief by M. W. Meienburg of Brodhead, attorney, and Rieser Mathys of Madison of counsel, and oral argument by Mr. Meienburg, Mr. W. S. Stafford of Madison, and Mr. Clifford G. Mathys.
For the respondent there was a brief by F. Earl Lamboley of Monroe, attorney, and Toebaas, Hart, Kraege Jackman of Madison of counsel, and oral argument by Mr. Oscar T. Toebaas and Mr. Lamboley.
Proceeding commenced January 17, 1949, by Leon Kirkpatrick, seeking payment from the estate of Nettie Milks of a $5,000 promissory note. A claim for this amount was duly filed in the administration proceedings pending in the county court of Green county. In July, 1941, claimant began working on the farm of Nettie Milks. He continued there until August 15, 1948. The farm consisted of one hundred seven to one hundred ten acres, forty acres of which were tillable. There were some cows and pigs besides the crops to be cared for. Claimant was the only person other than the deceased who lived on the farm. He did all the work with the exception of the chores with which, when able, she helped and "the tractor work, which was hired out." For approximately a year preceding her death deceased was an invalid confined to her bed, and there was no help in the house other than the claimant. A neighboring farmer testified that the average wage for work of this kind over those seven years would be about $100 a month. Records kept by the deceased show that she paid different amounts at intervals to claimant, aggregating about $3,000 over the seven years. On July 24, 1948, Nettie Milks was admitted to St. Clare Hospital suffering from arteriosclerosis. She died there August 15, 1948. During this time Leon Kirkpatrick visited her frequently, as did relatives and friends. Upon entering the hospital, she gave Leon Kirkpatrick's name as the person to be called "if anything happened." On the 13th day of August she executed a note by making her "X" mark. This was witnessed by a nurse of the hospital and by Dr. Swan, her attending physician. The nurse testified that the terms of the note were explained to deceased before she affixed her "X" mark, but that the fine print had not been read. The nurse also testified that deceased seemed to understand and appeared willing to sign, and that she was in possession of her mental faculties which were not affected by her illness. The nurse also testified that the doctor held deceased's wrists to enable her to sign.
The administrator of the estate objected to the payment of the note, alleging that claimant had been paid during decedent's lifetime all wages due him, that the note was not properly executed or signed by decedent, that if given by decedent it was made without consideration; that decedent was mentally incompetent and incapable of conducting a transaction of this character, that claimant knew this, and that the note was obtained by unlawful and undue influence exerted over decedent by plaintiff or his agents. Admission of testimony by the physician as to circumstances surrounding the execution of the note was rejected by the court on the grounds that it was privileged.
The court found that the claimant worked on the farm of the decedent for a period of over seven years; that the decedent was seventy-five years of age and "was unquestionably subject to undue influence at the time the note was made on August 13, 1948, because of her weak physical condition and the complications from which she was suffering;" that the opportunity to exercise undue influence on the part of the claimant was present; that there was a disposition on claimant's part to influence the decedent unduly; that the securing of the note was the result of undue influence; that claimant stood in a position of confidence and trust with the decedent; that the decedent, "an aged and infirm person, prior to her death, made disposition of a part of her estate by the execution of the note in question to the claimant, Leon Kirkpatrick, under circumstances that arouse suspicion and that it was done in such a way as to inflict an injustice upon the heir of said decedent."
Among the conclusions of law the court determined: "That the administrator, Merrl T. Milks, has met the burden of proof as to all four elements necessary to show that undue influence was exercised over the decedent, Nettie M. Milks, by the claimant, Leon Kirkpatrick, and that said administrator has proved the same affirmatively . . . . That the decedent, at the time of her death, owed no sum or sums to the claimant, Leon Kirkpatrick, and that the note in question was null and void and of no effect."
Judgment was entered November 4, 1949, in favor of administrator, dismissing the claim and for costs and disbursements. Claimant appeals.
The trial court was of the opinion that Dr. Swan, the attending physician of the deceased, could not testify concerning the transaction resulting in the execution the note. He based his ruling on the terms of sec. 325.21, Stats. That section, with respect to communications to doctors, provides that "No physician or surgeon shall be permitted to disclose any information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient." The terms of that statute, as the learned trial judge said, generally have been strictly followed as far as the testimony relates to information acquired which was necessary to enable the physician professionally to serve such patient. But it has always been recognized that there may exist a different character of evidence arising from independent events which may come to the knowledge of a physician, such as evidence of acts or admissions not at all necessary to enable him to discharge the duties of his professional relation to his patient. It is that character of testimony that may be admitted under the accepted doctrine, as recognized in such cases as Prudential Ins. Co. v. Kozlowski (1938), 226 Wis. 641, 276 N.W. 300, and Will of Williams (1950), 256 Wis. 338, 41 N.W.2d 191. In support of the right to offer evidence existing and not obtained by the physician to enable him professionally to serve such patient, there is authority for admitting testimony where the witness has been requested by the decedent to take part in the transaction. This testimony is readily distinguished from anything related to the relation of physician and patient. It was ruled in this state in the case of Boyle v. Robinson (1906), 129 Wis. 567, 109 N.W. 623, that a physician's testimony with relation to his part in such a transaction is material, and that he is a competent witness. See also Estate of Peterson (1947), 250 Wis. 158, 26 N.W.2d 553, and Maine v. Maryland C. Co. (1920), 172 Wis. 350, 178 N.W. 749.
In the memorandum opinion, the trial court expressed itself in the following language:
"It would appear from a careful study of this entire case that if this claim is to be disallowed it must be on the grounds that the signature was obtained by undue influence. There is some testimony as to the incompetency of the decedent, but it is insufficient to overcome the burden of proof that rests with the administrator in asserting such a defense."
We assume the competency of the signer of the note as determined by the trial court. But in view of the result reached here that a new trial must be had, we refrain from expressing an opinion on the evidence or discussing the same. On the question of undue influence it becomes important to have before the court the material and relevant testimony which will enable the court to reach a just conclusion. The investigation of questions of the nature here involved is designed to result in a rational proceeding leading to the settlement of the dispute between interested parties. The conclusion to be reached must come from a consideration of testimony given by those participating in or observing what was done. As far as the physician is concerned, he is a competent witness if his part in the transaction was disassociated from his professional duties or where the privilege with relation to confidential communications has been waived. The effect of testimony which may be received properly ought to bring into perspective the truth in the matter, enabling the trier of the fact to determine whether there was created a good faith obligation which ought to be discharged by the estate.
We are concerned under the circumstances portrayed in the record now before us because of the elimination from consideration of the testimony sought to be brought forward from the witness, Dr. Swan. The ruling of the trial court in excluding the testimony which the doctor might properly have given leaves out of the data any explanation of the doctor's possession of the note, his part in presenting the note to the signer, and any conversation which he might then have had with her concerning the matter. This should have been before the court. Unfortunately, there was no offer of proof, and the substance of the excluded evidence has not been made known, as far as the record is concerned, either to the judge or the adversary. However, because it is considered that the issues in this case have not been fully tried, we are of the opinion that the failure to make the offer of proof cannot in this instance overbalance the error of the ruling. In holding that error was committed in ruling that the doctor could not be permitted to give his testimony, we are of the opinion that the record as made shows the evidence sought would in nowise have subjected the deceased to shame, or affected her social standing, or injured her feelings or reputation; that the rejected testimony would have brought into the trial the doctor's observations, not involving a violation of his professional relation with the patient. It also appears that the trial court would not have permitted the giving of any testimony by the doctor with relation to his part in the transaction.
Because of the reasons set out above, we are of the opinion that the rights of the parties should be determined after a full consideration of the material and competent evidence including that of Dr. Swan concerning his part in the transaction.
The other ruling challenged prevented the claimant from describing the value, nature, and extent of the services which he performed for the deceased. The transactions with deceased persons and the competency of witnesses are a matter of judicial concern. However, there is no rule which would prevent testimony as to services rendered a deceased person and the value thereof. An alleged agreement based on conversation with deceased to pay for those services is a matter which has special treatment in the law. But sec. 325.16, Stats., does not render claimant incompetent to testify in support of a claim against the estate of a deceased person, that he performed services for the deceased, and as to their nature and reasonable value. Will of Fuller (1926), 190 Wis. 445, 209 N.W. 683.
By the Court. — The judgment appealed from is reversed and the cause remanded for a new trial, with directions to admit the testimony referred to and to decide the matter upon its merits after a full consideration of the material and competent evidence.