Bassil v. Ford Motor Co.

• Citation: 270 N.W. 258,278 Mich. 173
• Decision Date: 09 December 1936
• Docket Number: No. 101.,101.
• Parties: BASSIL et al. v. FORD MOTOR CO.
• Court: Supreme Court of Michigan

278 Mich. 173

270 N.W. 258

BASSIL et al.

v.FORD MOTOR CO.

No. 101.

Supreme Court of Michigan.

Dec. 9, 1936.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Helen Bassil, the widow, and by James Bassil, a minor, by his guardian, Nazira Hajjar, for the death of Naef Bassil, opposed by the Ford Motor Company, employer. The Department granted an award to be divided equally between the widow and minor child, and the widow appeals.

Affirmed.

Argued before the Entire Bench, except POTTER, J.

J. F. Youssephany, of Detroit (Monaghan, Crowley, Clark & Kellogg and Edward T. Kelley, all of Detroit, of counsel), for appellant.

Jorgensen, Alexander & Matheny, of Detroit, for appellee.

NORTH, Chief Justice.

Naef Bassil was an employee of the Ford Motor Company. He suffered an accidental injury which resulted in his death and an award of $18 per week for 300 weeks, together with an allowance for funeral expenses, was made by the Department of Labor and Industry. The department found that the plaintiff Helen Bassil, hereinafter referred to as the widow, and a minor child, James Bassil, were each total dependents, and ordered that the award should be divided equally between the two. This minor child was born during the period of wedlock of Naef Bassil and his former wife, Nazira Bassil, who subsequently obtained a divorce from Naef Bassil and married George Hajjar. The widow claimed and sought to prove that Naef Bassil was not the father of the minor child, but instead that this child was conceived in consequence of the adulterous relation of the employee's former wife and her present husband. If the widow's contention were established, she could claim the whole of the award. The department found against the widow, and she has appealed.

The first question presented involves the widow's contention that the department erred in excluding testimony offered by appellant which she claimed would prove, or tend to prove, that the minor child was not the son of Naef Bassil. She offered to show by the testimony of two physicians who had examined the deceased, one of them having examined him both before and after the conception and birth of the minor child, that Naef Bassil was physically incapable of begetting a child; by the testimony of members of the family that it was generally reputed among them that Naef Bassil was not the father of the minor; and to establish this same alleged fact by declarations made by Naef Bassil during his lifetime, and by admissions of the minor's mother that she was guilty of adultery at or about the time the minor child was conceived.

The testimony of the two physicians was excluded on the ground that it was privileged. Appellant claims it was not privileged both on the ground that the information was not obtained by the physicians under such conditions as render it privileged within the provisions of the pertinent statute, and further that the protection of the statute, if any, was waived because the communication to the physician was in the presence of a third party, i. e., Bassil's first wife. We quote the statute in part: ‘No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.’ 3 Comp.Laws 1929, § 14216.

On this phase of the case the following facts are pertinent: While Naef Bassil and his first wife were living together the two went to a physician for the purpose of ascertaining why the wife did not become pregnant, and the physician made an examination of the reproductive organs of the husband for the purpose of ascertaining his condition. The physician was given a history of the patient by which it was revealed that the latter many years prior to the examination had gonorrhea and double epididymitis. The examination disclosed that as a result of the gonorrhea Bassil had become physicially incapable of begetting a child. Incident to determining Bassil's condition in the particular above noted, the doctor made two or three tests within a few days following the first visit, which was in January, 1926. The minor, whose parentage is in question, was born May 1, 1927. Subsequent to the birth of this child Bassil was again examined by the physician whom he had formerly consulted and also by another physician. The result of these subsequent examinations confirmed the conclusion reached at the first. In contending that the information obtained by the physicians was not privileged, appellant states in her brief:

‘The examinations were procured at the instance of Nazira Hajjar and are not privileged because made in her presence and with her consent.

‘The examinations were made merely for the purpose of ascertaining the condition of the deceased and not for the purpose of treatment; and the privilege is not available under such circumstances.

‘The plaintiff (the widow) has a right to and did waive the privilege on behalf of the deceased.’

None of these contentions can be sustained. The presence of Bassil's first wife, with whom he was then living, did not waive the privilege.

‘It has been the policy of the Legislature and the courts of this state to protect this privilege.’ Gilchrist v. Mystic Workers, 188 Mich. 466, 476, 154 N.W. 575, 578, Ann.Cas.1918C, 757.

The presence of one sustaining an intimate family relation with the patient when consulting a physician should not and does not waive the privilege. Denaro v. Prudential Ins. Co. of America, 154 App.Div. 840, 139 N.Y.S. 758;Indiana Union Traction Co. v. Thomas, 44 Ind.App. 468, 88 N.E. 356.

Appellant's counsel stresses the contention that the knowledge obtained by a physician concerning a patient was not privileged at common law, that the privilege exists only by virtue of the statute, and therefore does not exist except it...