8 Mo.App. 363 (Mo.App. 1880), Linz v. Massachusetts Mut. Life Ins. Co.

Citation:8 Mo.App. 363
Opinion Judge:HAYDEN, J.
Attorney:KEHR & TITTMANN, for the appellant: EDWARD WHITE, for the respondent:
Judge Panel:Judge BAKEWELL concurs; Judge LEWIS is absent.
Case Date:February 17, 1880
Court:Court of Appeals of Missouri

Page 363

8 Mo.App. 363 (Mo.App. 1880)

BARBARA LINZ, Appellant,



Court of Appeals of Missouri, St. Louis.

February 17, 1880

1. A physician is, under the statute, incompetent to testify to any facts acquired by him through his relation as such to his patient, which information was necessary to enable him to treat his patient, whether the knowledge be gained from statements or examination of the patient.

2. Where the facts sought to be elicited are so superficially apparent that in regard to them no confidence could have been reposed, the statutory exemption does not apply.

3. The statutory provision imposing a condition upon a defence based upon misrepresentation, in actions upon insurance policies, is void as to its retrospective clause.

4. Where a life-insurance policy provided that it shall be void if the statements therein made by the insured be untrue in any respect, the statements made as to the age of the insured are properly treated as warranties.

5. If the action of the trial court be found to be erroneous in respect to either of two branches of a defence, this is sufficient ground for a reversal.

APPEAL from the St. Louis Circuit Court.

Reversed and remanded.

KEHR & TITTMANN, for the appellant: There was error in permitting the physicians to testify to information acquired while attending George Linz in their professional capacity.-- Edington v. Insurance Co., 5 Hun 1; s. c. 67 N.Y. 185-194; Edington v. Insurance Co., 13 Hun 543-549; Cohen v. Insurance Co., 41 N.Y. 296; Johnson v. Johnson, 4 Paige 460; The People v. Stout, 3 Park. Cr. 670; Harris v. Rupal, 14 Ind. 209. Laws are presumed to be constitutional unless they manifestly infringe some provision of the Constitution.-- The State v. Railroad Co., 48 Mo. 468; The State v. Able, 65 Mo. 357; In re Burris, 66 Mo. 442; McCulloch v. Maryland, 4 Wheat. 306; Ogden v. Saunders, 12 Wheat. 270; Sun Ins. Co. v. City of New York, 5 Sandf. 10. Laws changing the remedy are not unconstitutional, and laws which change the rules of evidence relate to the remedy only.--Cooley's Const. Lim. (3d ed.) 286-289; City v. Πters, 36 Mo. 463; Hope Ins. Co. v. Flynn, 38 Mo. 484; Edmonson v. Ferguson, 11 Mo. 346; Bruno v. Crawford, 34 Mo. 330; Dinnell v. Stevens, 35 Mo. 441; Smith on Stat. & Const. Law, 387, 388, sects. 254, 266. In order to make any statements binding as warranties, they must appear upon the face of the policy itself. If not so set out, they are not warranties, but representations.--Bunyon on Life Assur. 34; May on Life Ins., sect. 159; American Ins. Co. v. Day, 39 N.J.L. 93; Miller v. Insurance Co., 31 Iowa 231; Campbell v. Insurance Co., 98 Mass. 381-393.

EDWARD WHITE, for the respondent: Where an instrument is partly printed and partly written,--that is, where it is printed, with blanks which are afterwards filled up,--and the question arises as to which a preference should be given, the answer is, to the written part.--2 Pars. on Con. (6th ed.), sects. 516, 517; Harper v. Insurance Co., 17 N.Y. 194; Benedict v. Insurance Co., 31 N.Y. 389; Phœ nix Ins. Co. v. Taylor, 5 Minn. 492; Hayward v. Insurance Co., 19 Abb. Pr. 116; Forbes v. Insurance Co., 15 Gray 249; Reynolds v. Insurance Co., 47 N.Y. 597. The rule as to the exclusion of testimony on the ground of privilege should be strictly construed.-- Satterlee v. Bliss, 36 Cal. 489; The State v. Collins, 67 Mo. 380; Edington v. Insurance Co., N.Y. Ct. App.--. A statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past, is to be deemed retrospective or retroactive.-- White v. Insurance Co., 5 Cent. L. J. 486; Sedgw. on Stat. & Const. Law, 188; Hope Ins. Co. v. Flynn, 38 Mo. 483. Any deviation from its terms, by imposing conditions not expressed in the contract, however minute and apparently immaterial in their effect, is within the constitutional provision.-- Winter v. Jones, 10 Ga. 190; Green v. Biddle, 8 Wheat. 85; Howard v. Bugbee, 24 How. 461; Tenett v. Taylor, 9 Cranch 43; Dartmouth College v. Woodward, 4 Wheat. 518; 2 Story on Const. (2d ed.), sect. 1385. After a contract is complete, it impairs its...

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