Templeton v. Mutual Life Ins. Co. of New York

• Decision Date: 12 May 1936
• Docket Number: 25893.
• Citation: 57 P.2d 841,177 Okla. 94,1936 OK 394
• Parties: TEMPLETON v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Oklahoma Supreme Court

57 P.2d 841

177 Okla. 94, 1936 OK 394

TEMPLETON v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 25893.

Supreme Court of Oklahoma

May 12, 1936

Syllabus by the Court.

1. An applicant for life insurance may make a valid contract with the insurer, waiving the privilege afforded him by section 589, C.O.S.1921, subd. 6 (O.S.1931, § 272, subd. 6), which renders a physician incompetent to testify to professional communications from his patient and knowledge of his patient obtained in a professional way.

2. The error of the trial court, if any, in ruling on the admissibility of evidence, will not require a reversal of the cause by this court, where such evidence is merely cumulative of other competent proof of the same fact, and the facts sought to be thereby established are uncontradicted. To be reversible, the error complained of must be such that it materially prejudiced the rights of the appellant. O.S.1931 § 3206.

3. A motion to make petition more definite and certain is addressed to the sound discretion of the court, and a ruling thereon, in the absence of an abuse of such discretion that results prejudicially to the party complaining, will not be disturbed. O.S.1931, § 3206.

Appeal from District Court, Okmulgee County; J. Harvey Smith, Judge.

Action by Julia C. Templeton against the Mutual Life Insurance Company of New York, wherein defendant filed a cross-petition. From a judgment for defendant, plaintiff appeals.

Affirmed.

Wellington L. Merwine and Carland Smith, both of Okmulgee, for plaintiff in error.

Embry Johnson, Crowe & Tolbert, of Oklahoma City, for defendant in error.

GIBSON Justice.

The parties here appear as they did in the trial court.

Plaintiff sued upon an insurance policy issued by defendant company June 25, 1929, upon the life of Robert C. Templeton, her son who died May 1, 1930. The defendant, in its answer, admitted the execution, issuance, and delivery of the policy of insurance, but alleged that said policy was procured to be issued by the deceased by means of willfully false, fraudulent, and untrue statements and representations contained in the application for the insurance and made to defendant's medical examiner concerning deceased's then present health, past illnesses, and prior medical treatment, and defendant tendered a return of the premium paid, together with interest thereon. Plaintiff, in her reply, denied the allegations of the answer, and upon the issues thus formed and the evidence, the cause was submitted to a jury which, after consideration, returned a verdict in favor of the defendant upon which the court rendered judgment. The defendant assumed the burden of proof and introduced in evidence the policy of insurance and the application therefor. It then offered the testimony and depositions of a number of physicians who had treated, examined, and observed professionally the insured at different times over a period commencing several years before the issuance of the policy and extending up to the time of the insured's death. The application for insurance which the insured signed contained the following provision:

"This application is made to the Mutual Life Insurance Company of New York herein called the Company. All the following statements and answers, and all those that the Insured makes to the Company's Medical Examiner in continuation of this application, are true, and are offered to the Company as an inducement to issue the proposed policy. The Insured expressly waives on behalf of himself or herself and of any person who shall have or claim any interest in any policy issued hereunder, all provisions of law forbidding any physician or other person who has attended or examined, or who may hereafter attend or examine the Insured, from disclosing any knowledge or information which he thereby acquired. * * *"

The trial court admitted over the objections and exceptions of the plaintiff the testimony of the physicians and surgeons above referred to concerning communications made to them by the insured with reference to the physical and supposed physical disease and the knowledge obtained by said physicians and surgeons from a personal examination of the insured. The plaintiff urges this as error and presents it under her first proposition.

Section 589, subd. 6, C.O.S.1921 (section 272, subd. 6, O.S.1931), is as follows:

"The following persons shall be incompetent to testify: * * *

Sixth. A physician or surgeon, concerning any communication made to him by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by a personal examination of any such patient: Provided, that if a person offer himself as a witness, that is to be deemed a consent to the examination; also of an attorney, clergyman or priest, physician or surgeon on the same subject, within the meaning of the last three subdivisions of this section."

Plaintiff relies on that section and contends that insured could not waive by contract the privilege afforded by the statute, but could do so only by offering himself as a witness. We have held to the contrary.

In National Life & Accident Ins. Co. v. Roberson, 169 Okl. 136, 36 P.2d 479, 480, evidence of certain physicians was excluded by the trial court on the ground that the same was privileged under subdivision 6, § 272, O.S.1931, the statute relied on by plaintiff in the instant case; but this court held the ruling erroneous, and said:

"In the application for insurance signed by deceased, the following provision is contained:

'I expressly waive on behalf of myself and of any person who shall have or claim any interest in any policy issued hereunder all provisions of law forbidding any physician or other person who has attended or examined me, or who may hereafter attend or examine me, from disclosing in the courts or otherwise, any knowledge or information which he thereby acquired; and I hereby specifically authorize all such persons to freely communicate their knowledge to the company, if it request them so to do.'

The above provision in the application for insurance constituted a waiver of the privileged character of the testimony which was binding on plaintiff, and the exclusion of such evidence was error. Oklahoma Protective Ass'n v. Montgomery, 160 Okl. 135, 16 P.2d 135."

In Oklahoma Protective Ass'n v. Montgomery, 160 Okl. 135, 16 P.2d 135, we held:

"The application for insurance, on which the certificate of insurance was issued, signed by the insured, contained a stipulation, as follows: 'It is understood that all statements and answers as written or printed in this application are full, complete and true, whether written by my own hand or not; I agree that their truth is a material inducement to and the basis of any insurance issued hereon. And I hereby authorize any physician or other person who has attended me or may hereafter attend me to disclose to said Insurance Company any information thus acquired.' The court refused to allow the testimony of attending physicians, as to communications made by the applicant to them concerning disease, from which the applicant suffered, and their knowledge of disease of this applicant gained by examination. Held, reversible error was committed."

The rule announced seems to be the one followed in all jurisdictions which have considered this question except New York and Michigan. In New York, under a statute peculiar to that state, the waiver must be made on the trial or examination. In Michigan it is provided by statute that the privilege could not be waived except by the personal representative and at the trial, and then only in a will contest. See Supreme Lodge of Knights of Pythias v. Meyer, 198 U.S. 508, 25 S.Ct. 754, 49 L.Ed. 1146, and Gilchrist v. Mystic Workers of the World, 188 Mich. 466, 154 N.W. 575, Ann.Cas.1918C, 757. Kansas has a statute, the pertinent part of which is identical with section 272, supra. In Metropolitan Life Ins. Co. v. Brubaker, 78 Kan. 146, 96 P. 62, 65, 18 L.R.A. (N.S.) 362, 130 Am.St.Rep. 356, 16 Ann.Cas. 267, the court said:

"The statute quoted contemplates that the patient may consent to this physician's testifying. Therefore no question of public policy is involved. The public policy of the state does not depend upon the will of individuals who are free to act as circumstances may suggest them. It is elementary law that communications, made in professional confidence, are not incompetent. If a third person hear them he may testify. The disqualification is imposed upon the lawyer, physician, or priest only, and not for his benefit, or for the benefit of the public, but merely as a privilege to the client, patient, or person confessing. This privilege, like many others, even those protected by constitutional guaranty, may be waived. By statute, if the party himself testify, the privilege is waived. If he publish the confidential matter to the world, the privilege is waived. See In re Elliott, 73 Kan. 151, 84 P. 750; In re Burnette, 73 Kan. 609, 85 P. 575. And it would deprive him of a valuable right, if he were prohibited from making a waiver by contract in advance of litigation."

The rule announced in the Brubaker Case has been approved and followed by the Supreme Court of Kansas in many of its later decisions, notably the following: Novak et al. v. Chicago Fraternal Life Ass'n, 136 Kan. 609, 16 P.2d 507; Armstrong v. Topeka R. Co., 93 Kan. 493, 144 P. 847; Matthews v. McNeill et al., 98 Kan. 5, 157 P. 387; Bruington v. Wagoner et al., 100 Kan. 10, 164 P. 1057; Flack et al. v. Brewster, 107 Kan. 63, 190 P. 616.

The Brubaker decision has also been quoted with approval in Prahm v. Prudential Ins. Co. of America, 97 N.J.Law 206, 116 A. 798; Shornick v. Shornick, 25 Ariz. 563, 220 P. 397, 31 A.L.R. 159; New...