Daste v. First Natl. Life, Health And Accident Ins. Co

• Decision Date: 03 November 1930
• Docket Number: 13,334
• Court: Court of Appeal of Louisiana — District of US
• Parties: DASTE v. FIRST NATL. LIFE, HEALTH AND ACCIDENT INS. CO

130 So. 572

14 La.App. 565

DASTE v. FIRST NATL. LIFE, HEALTH AND ACCIDENT INS. CO

No. 13,334

Court of Appeals of Louisiana, Orleans

November 3, 1930

Appeal from Civil District Court, Parish of Orleans. Hon. Hugh C Cage, Judge.

Action by Bernard Daste against First National Life, Health and Accident Insurance Company.

There was judgment for defendant dismissing suit, and plaintiff appealed.

Judgment affirmed.

P. L Fourchy, of New Orleans, attorney for plaintiff, appellant.

Norman McMahon & Breckwoldt, of New Orleans, attorneys for defendant, appellee.

OPINION

HIGGINS J.

Plaintiff sues defendant to recover disability benefits and statutory penalties under a health and accident insurance policy. Defendant denied liability and averred that the plaintiff had completely recovered from his injuries and specially pleaded that under the provisions of the policy defendant had reserved the right to have a medical examination of the insured made by its physician, and that the defendant had requested the plaintiff to submit to such an examination, but that the plaintiff had refused and still refuses to permit one to be made.

On the trial of the case on its merits plaintiff sought to introduce evidence to show his injuries and disability resulting from the accident, whereupon the defendant objected to the admission of any evidence to prove any injury or physical disability on the part of plaintiff because he had been requested to submit to a physical examination and refused to do so. The defendant then offered evidence which established that the plaintiff refused and still refuses to submit to such an examination. The trial court maintained the objection, and the plaintiff then offered in evidence the policy sued upon and was forced to rest his case.

There was judgment in favor of defendant dismissing plaintiff's suit, and plaintiff has appealed.

In the case of Bailey v. Fisher, 11 La.App. 187, 123 So. 166, 167, the plaintiff sued for damages for personal injuries and refused to submit to a medical examination by the defendant's doctor, and the lower court maintained the objection to the admissibility of evidence tending to prove damages resulting from physical injuries. This court said:

"Prior to the trial in the court below, defendant caused his physician to call on plaintiff for the purpose of making a physical examination to determine the extent of the injuries. Plaintiff, apparently through misunderstanding, refused to allow the physical examination to be made.

"At the trial, defendant's counsel objected to the introduction of any medical testimony by plaintiff's physicians, contending that, under the doctrine announced by our ...