The opinion
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ON PETITION FOR REHEARING
Crumpacker, J.
In the course of the trial of this cause the appellants propounded the following question to one R. R. Naugle whom they had previously qualified as an expert medical witness: “Dr. Naugle, from your observations of Isaac Conner during the two years he ment to the hospital — two years before the time he went to the hospital and the facts that you learned concerning him and the facts that you testified to thus far in your testimony, did you then before he went to the hospital and do you now have an opinion and view as to what was his mental condition and what, if any, ailment he was suffering from?” The doctor answered that he had an opinion and thereupon he was asked, “What is that opinion?” To this question the appellee interposed the following objection: “To which we object for the reason that the witness can only express an opinion as to whether or not the decedent was of sound or unsound mind, and for the further reason that anything he might have learned professionally would be privileged.” This objection was sustained by the trial court and because of such ruling we reversed the judgment herein for reasons fully set out in our written opinion.
Ante,
p. 173; 76 N. E. 2d 262 .
The salient ground for a rehearing, presented by the appellees’ petition, is to the effect that if a ruling can be sustained upon any theory, whether advanced at the time of such ruling or not, it must stand and before a judgment can be reversed because of it the party appealing must show that such ruling was wrong upon any theory whatsoever. That such is the general rule there can be no doubt.
Haas
v.
Cones Mfg. Co.
(1900), 25 Ind. App. 469 , 58 N. E. 499 ;
Eck
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man
v.
Funderburg
(1914), 183 Ind. 208 , 108 N. E. 577 . The appellees contend that their objection to the question here involved could properly have been sustained on the theory that it is double even though such objection was not advanced at the time of the court’s ruling and therefore we cannot lawfully hold such ruling to be reversible error. The question is double, the appellees assert, because it calls for answers to two pertinent inquiries: (1) What was the testator’s mental condition; and (2) with what ailment, if any, was he suffering? Our courts have held that it is error to overrule an objection to a question that is double in form where one part of the question assumes the existence of a disputed fact.
Sullivan
v.
State
(1928), 200 Ind. 43 , 161 N. E. 265 . The general rule is stated in 70 C. J., Witnesses, § 672, in the following language: “Questions containing more than one proposition to which different answers might be given are improper.” An examination of the cases in which this rule is applied reveals that either part of the objectionable question is improper or it calls for a catagorical answer in a situation where one element of the question might be answered, “yes” and the other, “no.” Questions concerning a witness’ “reputation for truthfulness, honesty and fair dealing” have been held improper as presenting two separate issues to which different answers might be made.
Brannon
v.
Gartman
(Texas), 283 S. W. 817 . The question here involved presents none of these difficulties. Its plain purport is to elicit the opinion of the witness as to the mental condition of the testator and what disease, if any, was responsible for it. It may be conceded that technically the question is double but its subject matter was vital to the appellants’ case and they had the right to explore that subject in the manner
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chosen. The record indicates, beyond peradventure, that this right would have been denied to them even though each phase of the inquiry had been put to the witness in a separate question. Under such circumstances to write the error off on the theory that the ruling can be upheld for purely technical reasons can hardly be justified.
All other questions presented by the appellees’ petition for a rehearing are fully discussed and decided in our former opinion and to the holdings there announced we still adhere.
Rehearing denied.
Note. — Reported in 77 N. E. 2d 598 .