Linz v. Massachusetts Mut. Life Ins. Co.

• Decision Date: 17 February 1880
• Citation: 8 Mo.App. 363
• Parties: BARBARA LINZ, Appellant, v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Respondent.
• Court: Missouri Court of Appeals

8 Mo.App. 363

BARBARA LINZ, Appellant,

v.MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 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. Œters, 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; Phœnix 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 obligation to impose conditions.-- Robinson v. Magee, 9 Cal. 81. Where the verdict is for the right party on the whole record, the Supreme Court will not reverse the case though error has been committed.-- Tate v. Bancroft, 1 Mo. 163; Wear v. McCorkle, 1 Mo. 588; Crocker v. Mann, 3 Mo. 472; Orth v. Dorschlein, 32 Mo. 366. Even though improper evidence has been admitted.-- Garesché v. Dean, 40 Mo. 168; Ridgway v. Kennedy, 52 Mo. 24. Where a verdict is required by the testimony, independent of illegal evidence which has been admitted, a new trial will not be ordered.-- Tomlinson v. Driver, 53 Ga. 9; Ganard v. The State, 50 Miss. 147; Shacklett v. Ransom, 54 Ga. 350. A new trial will not be ordered in a case where, if granted, the second trial must necessarily have the same result as the first, even though there was manifest error in admitting certain evidence on the first trial.-- Scofield v. Lockwood, 35 Conn. 425; Hedecker v. Ganzhorn, 50 Mo. 154; Jackson v. McGruder, 51 Mo. 55. For these reasons, and upon these authorities, we claim that there should be no reversal of this case unless errors have been committed affecting both of respondent's defences.

HAYDEN, J., delivered the opinion of the court.

This is an action on a policy by which the defendant insures “the life of George and Barbara Linz in the amount of $2,000,” payable to the survivor of them. George Linz died, and the plaintiff, the widow, brings suit. The defences are, that the deceased had become so intemperate as to seriously impair his health and induce delirium tremens, whereby his policy by its terms became void; and that the assured in their application represented the age of the deceased to be thirty-four years, when in fact it was forty years. There was judgment below for the defendant.

There can be no serious doubt as to the construction of the clause, “in case the said person whose life is hereby insured shall * * * become so far intemperate as to impair his health seriously and permanently, or induce delirium tremens, * * * this policy shall thereupon terminate, and be void and of no effect.” The policy is payable to the survivor of the two, ninety days after due notice and proof of the death of either of them. There is no uncertainty here, nor need intemperance on the part of both persons be shown to establish a breach. If Barbara Linz had died first, the habits of her husband would not have been in question. By the terms of the policy, in the event that one dies before the other,--and this the policy anticipates and provides for, though they might die together,--the one dying, and not the other, becomes the subject of insurance. That the subject was contingent does not prove two persons were insured.

It is objected by the plaintiff that physicians were allowed to testify upon the trial as to information which they obtained from George Linz while he was their patient and they were attending him in a professional capacity. The rule which the court below adopted appears from the directions which the court gave to Dr. Spiegelhalter, when objection was made by the plaintiff to the question whether, from the witness's observations of the symptoms he saw in his patient, the witness could state from what disease the patient died. The court said: “You may state without regard to anything that he (the patient) may have said to you, without regard to any information which you may have derived from him. If the information you are about to give is in any manner founded upon information which you derived from a statement of the patient to you, you will not answer the question.” Comparing this ruling with the statute, we find the words are (sect. 8): “The following persons shall be incompetent to testify: * * * fifth, a physician or surgeon concerning any information which he may have acquired from any partient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.”

Not so much because it is in derogation of the common law as because it is in exclusion of the best evidence on the ground of privilege, this exaction should be carefully limited to what the statute requires. In proportion as the sources of the best evidence are closed to courts of justice, will be the inability of those courts to render judgments that are morally satisfactory even to themselves. The extension of the domain of privilege--whether placed upon the method of communication, as in case of the fancied inviolability of the telegrams, or upon more plausible grounds of analogy to common-law exceptions-- should be carefully watched by the courts. Yet when the exemption rests upon something tangible, as in the case of a statutory provision, the courts are bound to consider the intent of the Legislature and to apply well-settled rules of construction. True, in the clause just quoted we are not authorized to insert the word “oral” before the word “information,” so as to make the words read, “concerning any oral information,” etc. Information may be communicated otherwise than by the voice; and the patient who, being urged by his necessities, exposes parts of his person where a secret disease lurks, is certainly entitled to the protection of the statute, unless for the purpose and intent of the Legislature we are to substitute the immaterial incident of vocal communication. It is the acquisition of information through the medium of professional attendance that is the essential thing. When the patient submits his person to the physician, no word may be necessary; and if necessary, this makes no difference, since in both cases the information is acquired from...