Bryant v. Modern Woodmen of America

• Decision Date: 28 March 1910
• Docket Number: 15,962
• Citation: 125 N.W. 621,86 Neb. 372
• Parties: HANNAH BRYANT, APPELLEE, v. MODERN WOODMEN OF AMERICA, APPELLANT
• Court: Nebraska Supreme Court

125 N.W. 621

86 Neb. 372

HANNAH BRYANT, APPELLEE, v. MODERN WOODMEN OF AMERICA, APPELLANT

No. 15,962

Supreme Court of Nebraska

March 28, 1910

APPEAL from the district court for Madison county: ANSON A. WELCH JUDGE. Reversed.

REVERSED.

Benjamin D. Smith, Willis E. Reed and Thomas S. Allen, for appellant.

William V. Allen and William L. Dowling, contra.

OPINION

LETTON, J.

Action upon a benefit certificate issued by the defendant, a fraternal beneficiary association. No question is made as to the issuance of the certificate and the death of the assured but the payment is resisted upon the ground that the application, certificate and by-laws constitute the contract and that the assured made false answers to certain questions in the application which were material to the risk. The questions and answers referred to are as follows: "14. (a) Have you, within the last seven years, been treated by or consulted any person, physician or physicians in regard to personal ailment? No. * * * 17. Are you now of sound body, mind, and health, and free from disease or injury, of good moral character and exemplary habits? Yes. * * * 33. (a) Have you ever had any disease of the following named organs, or any of the following named diseases or symptoms? Consumption. No. Habitual coughing. No. Lungs. No." The reply alleges that the assured made general statements to the examining physician, who was the agent of defendant, from which statements the answers were written out in the application by the medical examiner, and that the same are not the answers made by the assured, and that the answers made to the physician were merely expressions of opinion, and were not intended as warranties.

The assured, on January 16, 1907, when he made the application, was a little over 30 years of age. In August, 1904 or 1905 (the evidence does not clearly indicate which year), he sprained his wrist while driving, and soon after hurt it again. His widow testifies that in September, 1905, he saw a physician in regard to this injury, and that in May, 1906, he went to Omaha to be operated upon.

In the application the following waiver of privilege is found: "I hereby expressly waive for myself and my beneficiary or beneficiaries the privilege or benefits of any and all laws which are now or may be hereafter in force making incompetent the testimony of or disqualifying any physician from testifying concerning any information obtained by him in a professional capacity. And I further expressly waive for myself and my beneficiary or beneficiaries the provision of any law, and the statutes of any state, now in force or that hereafter may be enacted, that would, in the absence of this agreement, modify or conflict with my contract with this society, or cause it to be construed in any way contrary to its express language." This was treated by the trial court as an effective waiver of the privilege of the assured as to any communications by him to the examining physician, but, as will be hereafter shown, not as a complete waiver of all that was said by patient and physician at the time of the physical examination.

Dr. Long testifies that about January 25, 1905, he was consulted by the assured with reference to the injury to his wrist, and that, upon making an ocular and tactual examination, he diagnosed the condition as tuberculosis of the bones of the wrist joint. He was then asked whether he told Mr. Bryant at that time what he was suffering with. The plaintiff objected to the question "as incompetent, irrelevant and immaterial, because no proper foundation has been made, because the relation of physician and client existed at the time, and the communication is privileged and could not be waived by Mr. Bryant in advance." This objection was sustained by the court, to which ruling the defendant excepted. The defendant then offered to prove the fact sought to be elicited, which was objected to, and the objection sustained. The witness then testified that from the examination and diagnosis he then made he was of opinion that tuberculosis must have existed in the system before that time.

Dr. A. P. Condon of Omaha testified that he was a practicing surgeon, that he became acquainted with the assured in June, 1905, that at that time Mr. Bryant had a tubercular inflammation of the wrist joint and carpal bone, that the bones and joints were diseased to such an extent that it became necessary to amputate the arm just above the wrist. His evidence was taken by deposition, and the record shows the following: "Q. 23. You may state now whether or not at the time you made this examination, or at the time you performed the operation, you explained to Mr. Bryant the nature of his ailment? A. I don't remember, but I do always explain to my patients the nature of their ailments. Q. 24. And what is your best judgment as to whether or not you told him at this time that he had tuberculosis of the wrist? A. I am sure I did, because I used that as an argument for the amputation." Plaintiff objected to all that part of the answer to question 23 after the words, "I don't remember", as incompetent, irrelevant and immaterial, not a statement of facts, which objection was sustained. Objection was also made to question 24, "because the same is incompetent, irrelevant and immaterial, and no foundation laid", which objection was sustained. Defendant excepted to both rulings.

Dr. Bush testified that about March 10, 1907, he was consulted by the assured at Sumner, Nebraska, and that at that time he was suffering from tuberculosis of the lungs. Dr. Jones testifies that he was present at the amputation of the arm, that the disease was tuberculosis of the wrist, that on March 23, 1907, he was called to attend Mr. Bryant, that he then had acute miliary tuberculosis of the lungs. The court, holding the view that the applicant had by the written waiver in the application waived the statutory privilege as to confidential communications to his physician, permitted Dr. Smart to testify that he had been consulted by Bryant one or two years before his death, and that he then diagnosed his ailment as tuberculosis of the lungs, but excluded testimony offered that the witness told Bryant at that time that he had this disease. The court said in this connection: "I will state, so far as that waiver is concerned, it does not require you to divulge any communication which you made to your patient, simply information which you received of the condition in which you found him; and, to the extent of any communication which you made to him, it would be a privileged communication which has not been waived." This seems to have been the reason for the ruling as to all evidence of like nature.

The evidence of some of the physicians is to the effect that germs of tuberculosis are present in about 78 per cent. of people generally, that a person may carry these germs all his life and die in the ordinary course of nature, and not from tuberculosis. The testimony of Dr. Baker, examining physician of the defendant, is that at the time the examination of Bryant was made by him it would have been impossible to determine whether or not he was infected with tuberculosis without making a microscopical examination of some of the tissues, and that from all external appearance he was in perfect health. He also testifies that, had he known the facts as to the former tuberculous condition, he would have rejected the application. The testimony further shows that about the 20th of February, 1907, the assured moved from Madison to Sumner, Nebraska, that the weather was at the time exceedingly inclement, snowy and cold, that he then caught cold, was hoarse, and from that time on suffered from a severe cold in the throat and lungs, that he consulted physicians in March for this trouble, and that he died on the 24th of May thereafter from acute tuberculosis of the lungs.

The application shows the following as to the amputation: "16. (a) Have you ever had any local disease, personal injury, or serious illness? Yes. (b) If so, explain fully, giving dates. Had hand amputated 2 years ago because of an injury. (c) Was recovery complete? Yes. * * * 30. (a) Have you ever undergone a surgical operation? Yes. (b) If so, when? June, 1904. (c) Give character of operation. Amputation of hand. (d) Was recovery complete? Yes. (e) Give names and addresses of attending surgeons and physicians. A. P. Condon, Omaha." And also a repetition of the same information on another page.

The defendant contends, first, that the court erred in refusing to permit the physicians who attended Bryant prior to the time he became a member of the society to state whether or not each told him at the time of the consultation that he had tuberculosis; and, second, that the court erred in giving and refusing certain instructions.

As to the refusal to permit evidence that Bryant was told by his physicians that he had tuberculosis: The...