Sovereign Camp, Woodmen of World v. Farmer

• Decision Date: 11 February 1918
• Docket Number: 19901
• Citation: 77 So. 655,116 Miss. 626
• Court: Mississippi Supreme Court
• Parties: SOVEREIGN CAMP, WOODMEN OF THE WORLD v. FARMER

77 So. 655

116 Miss. 626

SOVEREIGN CAMP, WOODMEN OF THE WORLD v. FARMER

No. 19901

Supreme Court of Mississippi

February 11, 1918

Division A

APPEAL from the circuit court of Panola county, HON. E. D. DINKINS Judge.

Suit by Mrs. Laura May Farmer against the Sovereign Camp, Woodmen of the World. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Watkins & Watkins, for appellant.

The court committed error in refusing to admit in evidence and excluding from the jury the testimony of Dr. Battle Malone and other doctors to the effect that the decedent, Farmer, at the time of the execution of the application in this case and upon the date of delivery of the policy, was not in good health.

The application signed by the decedent contained the following statement: "I hereby certify, agree, and warrant that I am of sound bodily health and mind, that I am temperate in habits, and have no injury or disease that will tend to shorten my life. I hereby consent and agree that this application, consisting of two pages to each of which I have attached my signature, the examining physician's report and all provisions of the constitution and laws of the order now in force, or that may hereafter be adopted, shall constitute the basis for and form a part of any beneficiary certificate that may be issued to me by the Sovereign Camp of the Woodmen of the World, whether printed or referred to therein or not.

Said application contained the following stipulation: "I further waive for myself and beneficiaries the privileges and benefits of any and all laws which are now in force or may hereafter be enacted in regard to disqualifying any physician from testifying in his professional capacity.

The contract sued upon was dated February 22, 1915, and contained the following memorandum, attached to and forming part thereof, signed and executed by the decedent, John Kendall Farmer.

"I have read the above certificate No. 80,343 of the Sovereign Camp of the Woodmen of the World, and the conditions therein, and hereby agree to accept the same as a member of Camp 958, State of Mississippi, this the 22nd day of February, 1915, and that all the requirements of section 58 of the constitution and laws of the order have been complied with."

Section 58 of the constitution and laws of the order, above referred to, contain the following language. "The liability of the Sovereign Camp for the payment of benefits on the death of a member shall not begin until after his application shall have been accepted by a Sovereign physician, his certificate issued, and he shall have: First--Paid all entrance fees; Second--Paid one or more advance monthly payments of assessments and dues, known as 'Sovereign Camp Fund;' also, signed his certificate and acceptance slip attached thereto; Third--Paid the physician for medical examination; Fourth--Been obligated or introduced by a camp or by an authorized deputy in due form; Fifth--Had delivered to him, in person, his beneficiary certificate while in good health."

"The foregoing are hereby made a part of the consideration for, and are conditions precedent to, the liability for the payment of benefits in case of death."

The testimony of Dr. Malone and other physicians which was excluded by the trial court would have established, if admitted, that many years prior to the application for an issuance of the certificate of insurance sued upon in this case, the member, Mr. Farmer, became afflicted with osteomyelitis or necrosis of the bone of the left leg, which means a decaying of the bone, and that the said John Kendall Farmer died within ten-months after the issuance of the said certificate, the immediate cause of his death being poisoning following an operation on such decayed bone, which testimony, if admitted, and believed by the jury if contradicted, would have established that upon the 22nd day of February, 1915, and upon the date of the signing of the application for the benefit certificate in question, the decedent was not in good health, as he contracted that he was upon the day and date of the delivery of the policy, but that he was then suffering with decayed bone, which was the immediate cause of his death.

The testimony of such doctors was competent and relevant under the issues formed in the case, but was excluded by the trial court, for the reason that such doctors, and each of them gained the information forming the subject of the testimony while attending the decedent as a physician, and that such testimony was inadmissible because of a confidential nature.

The question is squarely presented in this case as to whether or not such privilege of disclosure could be waived by the assured in his application for insurance, which formed part of the contract in the case, and as to whether or not such stipulation is binding and valid upon the beneficiary of the assured. There will be no question that the application for insurance forms part of the contract. The contract of insurance sued upon provides that the contract shall consist of the certificate of insurance the application and the constitution and by-laws of the order. And, aside from this it is universally settled in this country that the contract of a member of a fraternal order consists of; (A) His application for membership; (B) The certificate or policy of insurance; (C) The constitution and by-laws of the order itself.

We take it there will be no dissent about this proposition, but as a matter of convenience, we refer the court to the following authorities announcing such rule: Sabin v. Phinney, 134 N.Y. 423, 428; Shipman v. Protected Home Circle, 174 N.Y. 398, 409; Van Schoonhoven v. Curley, 86 N.Y. 187, 192; Port Edwards, C. & N. R. Co. v. Arpin, 80 Wis. 214-218; Kirkpatrick v. Modern Woodmen of America, 103 Ill.App. 468, 473; Wallace v. Madden, 168 Ill. 356, 360; Fullenweider v. Royal League, 180 Ill. 621, 625; Baldwyn v. Begley, 185 Ill. 180, 187; Treat v. Merchants' Life Ass'n, 198 Ill. 431, 435; Supreme Lodge, Knights of Pythias v. Knight, 3 L. R. A. 409, 117 Ind. 489; Union Mutual Ass'n v. Montgomery, 70 Mich. 587, 594; Supreme Lodge K. of P. v. La Malta, 30 L. R. A. 838, 839; 95 Tenn. 157; Sabin v. National Union, 90 Mich. 177, 179; Modern Woodmen of America v. Tevis, 117 Fed. (U. S. App. 8th Cir.) 369, 370; In Re Globe Mutual Benefit Ass'n, 63 Hun. 263; Gaines v. Supreme Council R. A., 140 F. 978, 979; Palmer v. Welsh, 132 Ill. 141; Relf v. Rundle, 103 U.S. 225, 26 L.Ed. 337; Warner v. Delbridge & Cameron Co., 110 Mich. 590, 594.

Section 3695, of the Code of 1906 is in the following language: "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."

At common law, communications between physician and patient were not privileged, but were admissible in evidence. 40 Cyc. page 2381; Trull v. Modern Woodmen (Idaho), 10 A. & E. Ann. Cas. 53; Freel v. Market Street Cable R. Co., 97 Cal. 40, 31 P. 730; Matter of Fling, 100 Cal. 394, 34 P. 863; Streeter v. Breckenridge, 23 Mo.App. 244; Westover v. Aetna L. Ins. Co., 99 N.Y. 59 Am. Rep. 1, 1 N.E. 104; Renihan v. Dennin, 103 N.Y. 573; 57 Am. Rep. 770, 9 N.E. 320; Westover v. Aetna Ins. Co., Supra; Freel v. Market Street Cable Co., supra; Thompson v. Ish, 99 Mo. 160, 12 S.W. 510, 17 Am. St. Rep. 552, And note on page 570; Foley v. Royal Arcanum, 151 N.Y. 196, 56 Am. St. Rep. 621, 45 N.E. 456; Coleman v. , 111 N.Y. 220, 19 N.E. 71; McKinney v. Grand St. etc., R. Co., 104 N.Y. 352, 10 N.E. 544; Alberti v. New York, etc., R. Co., 118 N.Y. 77, 23 N.E. 35; Rosseau v. Bleau, 131 N.Y. 177, 27 Am. St. Rep. 578, 30 N.E. 52.

It has been held everywhere that the question has been passed upon except in New York, that a stipulation by the insured waiving his statutory privilege as to communications to his physician is valid and makes the communications admissible in evidence, the stipulation is binding on both the insured and the beneficiary. Adreveno v. Mutual Reserve Fund, L. Ass'n. 34 F. 870 (Missouri Statute); Metropolitan Life Ins. Co. v. Wills, 37 Ind.App. 48, 76 N.E. 560; Keller v. Home L. Ins. Co., 95 Mo.App. 627, 69 S.W. 612; Fuller v. Knights of Pythias, 129 N.C. 318, 40 So. 65. Under the waiver herein discussed, the physician becomes competent to testify to his knowledge of the disease of which the insured died, in order to show that the death was not covered by the policy, as in the case of accident insurance. Western Travelers, Acc. Ass'n v. Munson, 73 Neb. 858, 103 N.W. 688. The physician also becomes competent to testify to his knowledge of the state of health of the insured prior to the time of the application for the insurance, with a view to showing a breach of warranty in the application. Modern Woodmen of America v. Angle (Mo. App. 1907), 104 S.W. 297; Fuller v. K. of P. (N. C.), 85 A. S. R. 744; Grand Rapids, etc., R. R. Co. v. Martin, 41 Mich. 667, 3 N.W. 173; Foley v. Royal Arcanum, 78 Hun 222, 28 N.Y.S. 952; Adreveno v. Mutual Reserve, etc., Ass'n, 34 F. 870; Dougherty v. Metropolitan Life Ins. Co., 87 Hun 15, 33 N.Y.S. 873; Metropolitan Life Ins. Co., v. Wills and Penn. Mutual, etc., Co. v. Wiler, 100 Ind. 92, 50 Am. St. Rep. 769. The identical question was presented in the case of Keller v. Home Life Ins. Co. (Mo.), 69 S.W. 612; Modern Woodmen v. Angle, 104 S.W. 297; Metropolitan Life Ins Co. v. Burbaker (Kans. ), 96 P. 62; In re Elliott, 73 Kans. 151, 84 P. 750; Re Burnette, 73 Kans. 609, 85 P. 575; Annuity Ass'n. v. McCall (Ark.), 146 S.W. 125; Foley v. Royal Arcanum,...