McCaw v. Turner , 126 Miss. 260 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

This is a proceeding in which the appellants, heirs at law of the testatrix, seek to have the will of Mrs. Ella A. Lay, deceased, set aside on the ground of undue influence and mental incapacity. The issue was submitted to a jury, which returned a verdict upholding the validity, of the Avili, and there Avas a decree accordingly. The ruling of the court beloAV assigned for error is the exclusion of the testimony of a physician relative to the alleged mental disability of the deceased, he having treated her therefor during her lifetime.

Section 3695, Code of 1906 (section 6380, Hemingway’s Code), is as follows:

“All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient.”

The contention of the appellant is: “The power to waive the privilege conferred upon the patient by the statute does not die with him, but may be exercised after his death by parties standing in a personal, or representative relation as regards such patient.”

The statute in plain and unambiguous language limits the right to waive the'privilege to the physician’s patient, and the right must be so limited by the courts, unless the manifest reason and obvious purpose of the statute would be sacrificed by adhering to a literal interpretation of its language. Koch v. Bridges, 45 Miss. 247; Yerger v. State, 91 Miss. 802, 45 So. 849; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809, 39 L. R. A. (N. S.) 541, Ann. Cas. 1914B, 392.

The manifest reason and obvious purpose of the statute is to enable a patient to disclose his infirmities to his physician in order that the physician may prescribe for his disease without fear that his feelings will be shocked or his reputation tarnished by their 'disclosure by the physician without his consent, which purpose will not only not be sacrificed by giving the words of the statute their usual and ordinary meaning, but on the contrary, will be sacrificed unless its words are given that meaning. The statute does not limit the privilege to the life of the patient, neither does it confer upon his heirs or devisees who' may quarrel over his property the right to tarnish his reputation by causing his physician to disclose his infirmities.

Affirmed.