Cross v. Equitable Life Assur. Soc. of United States

• Decision Date: 06 August 1940
• Docket Number: 45190.
• Parties: CROSS v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Iowa Supreme Court

293 N.W. 464

228 Iowa 800

CROSS v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 45190.

Supreme Court of Iowa.

August 6, 1940

Appeal from District Court, Wayne County; Homer A. Fuller, Judge.

Action at law on a life insurance policy issued without medical examination for the face amount of the policy alleged to be due on account of the death of the assured. The defense set up in the answer consisted of alleged false representations made in the application with respect to previous diseases consultations with physicians and hospital treatment, and because of said misrepresentations, it is alleged that the policy never took effect and was null and void. By direction of the court, the jury returned a verdict for plaintiff. Defendant has appealed.

Reversed and remanded.

Henry & Henry, of Des Moines, and T. W. Miles, of Corydon, for defendant-appellant.

Leo A Hoegh, of Chariton, and H. K. Evans, of Corydon, for plaintiff-appellee.

HAMILTON, Chief Justice.

The defendant issued a policy of life insurance to one Edward F. Dieter, bearing date of October 6, 1933, for $1,000 in which William M. Cross was subsequently named as beneficiary. The assured died on July 21, 1935. The policy was issued without a medical examination pursuant to an application which was made a part of the policy. In Part I of said application, the assured agreed that all of the answers contained in Part II were true and were offered to the defendant as an inducement to issue the policy applied for. Part II contained a personal history, consisting of questions and answers, relating to applicant's condition of health, previous diseases, consultations with physicians and treatment in hospitals, and contained an agreement that the answers were part of the application and that they were true and were offered to the defendant as an inducement to issue the policy. In answer to questions in said application, the application stated that he had never been under observation or had treatment in any hospital; that he had never been treated for various diseases enumerated in Question 9, which include ulcer and diseases of the stomach; that he had never had any other illness or injury not mentioned in the list of specific diseases; and that no physician or practitioner had been consulted by him or treated him during the past five years. After the plaintiff had rested his case, the defendant offered to prove by a physician that he had attended the assured in his professional capacity on thirteen separate occasions from January 16, 1929, to February 9, 1929; that, when the assured first consulted him, he complained of intestinal disturbance and indigestion; that, after examination, the doctor advised X-ray for diagnosis and, at the time, made a tentative diagnosis of peptic ulcer, advising a smooth diet. While under treatment, the assured vomited a large quantity of blood and had passed blood through his bowels for about a week; that he treated the assured until the hemorrhage had ceased. All this testimony was objected to by the plaintiff on the ground that the witness was incompetent, under section 11263 of the 1935 Code of Iowa, being privileged communications, and the objections were sustained. This ruling presents the basis for the first assignment of error, appellant contending that the privilege was waived because of the statement in the application for the policy wherein the assured said that he had not consulted or been treated by any physician or practitioner within the last five years.

Appellant cites and relies upon Pride v. Inter-State B. M. Acc. Ass'n, 207 Iowa 167, 216 N.W. 62, 62 A.L.R. 31, and Jacobs v. City of Cedar Rapids, 181 Iowa 407, 164 N.W. 891.The application was dated October 7, 1933, and the consultations and treatments, which the defendant offered to prove, occurred between January 16, 1929, and February 9, 1929, and on January 1, 1932. In the first-cited case we said [ 207 Iowa 167, 216 N.W. 66, 62 A.L.R. 31]:" It is undoubtedly true that a patient may waive his privilege, and that he may do so by contract in advance."

Said case turned on the question that the treatments or consultations were had after the date of the application and did not fall within the waiver. In the Jacobs case, supra, while on the witness stand on cross-examination, the assured testified: " I did not consult any doctors in regard to my health before my accident." [ 181 Iowa 407, 164 N.W. 892.]

In that case, a medical witness for the defendant testified that he had attended the plaintiff on several occasions in the past and had given her medical treatment. This was objected to on the ground that it was privileged. The court said, with reference to the statement of the plaintiff that she had not consulted a doctor: " Had this been said in her examination in chief, we should be constrained to hold that the relation which creates the privilege did not exist, and this though the doctor testifies it did exist."

Later in the opinion, the court further stated: " We are of opinion that when plaintiff testified, though on cross-examination, that no relation existed upon which the claim of privilege could rest, she settled, at least for that trial, that her objection was not well taken."

However, the court said it was unable to determine whether the error was prejudicial for the reason there was no offer of proof that the doctor's testimony concerning the treatment administered was for something, the existence of which would have tended to show that the fall of the plaintiff did not cause the injuries of which she complained.

Appellant seeks to apply the rule announced in the last-cited case to the present situation, where the answer of the assured, which negatives the relationship of physician and patient, is contained in the application. After careful consideration, we are inclined to disagree with able counsel for appellant. The company had the right, before issuing the policy, to require a physical...