Davis v. Supreme Lodge Knights of Honor

• Decision Date: 11 December 1900
• Citation: 165 N.Y. 159,58 N.E. 891
• Parties: DAVIS v. SUPREME LODGE KNIGHTS OF HONOR.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 159

58 N.E. 891

DAVIS

v.SUPREME LODGE KNIGHTS OF HONOR.

Court of Appeals of New York.

Dec. 11, 1900.

Appeal from supreme court, appellate division, Second department.

Action on a benefit certificate by Alice A. Davis against the Supreme Lodge Knights of Honor. From a judgment of the appellate division affirming a judgment for plaintiff (54 N. Y. Supp. 1023), defendant appeals. Affirmed.

Gray and Landon, JJ., dissenting.

W. R. Spooner, for appellant.

Herbert A. Heyn, for respondent.

O'BRIEN, J.

The defendant is a fraternal association incorporated under the laws of this state, with power to make contracts with its members for the payment of a sum of money to any beneficiary named in the contract upon the death of the member. The plaintiff's husband applied for membership in the association, was admitted, and received a certificate on the 19th day of July, 1895. In this certificate the defendant agreed to pay to the plaintiff the sum of $2,000 upon satisfactory proof by her of the death of her husband, and that at the time of his death the certificate or contract was in force. On the 16th of October, 1896, the plaintiff's husband died, and she presented to the defendant sufficient proofs of death in accordance with the constitution and by-laws of the defendant. But it refused to pay the money specified in the certificate upon the death of the member, which was $2,000, and the plaintiff thereupon brought this action to recover that sum, with interest.

The principal defense interposed was a breach of warranty, in that plaintiff's husband, in his application for membership, stated that neither of his parents, nor any of his paternal or maternal grandparents, nor any of their descendants, so far as he knew, had consumption. The issues presented by the answer were issues of fact, and the jury found a verdict for the plaintiff, which was unanimously affirmed at the appellate division. Thus all questions of fact and all questions as to the sufficiency of the evidence to warrant the verdict of the jury are eliminated from the case. The only questions presented by this appeal are those that arise out of the defendant's exceptions taken upon the trial. The defendant had a right at the trial to give proof tending to show that the statement contained in the application for membership, which has already been referred to, was untrue, and it had a right to prove, if it could, that either of the parents of the member, or his paternal or maternal grandparents, or any of their descendants, had been afflicted or had died of the disease known as consumption. The defendant did attempt to prove that fact, and the ruling of the learned trial court excluding certain evidence offered upon this issue, to which exception was taken, is the only substantial question which the learned counsel for the defendant has argued in this court. Although there are at least three exceptions in the record raising this question, yet they were all taken to the exclusion of proof of the same character, and they may be properly considered and treated as one. The defendant's counsel proved the death of two of the aunts of the deceased member who had procured the certificate in question, and he then attempted to prove that both died of consumption. This fact, if established, would so far constitute a defense to the action, since the aunts of the deceased member were included in the statement that none of the descendants of the applicant's grandparents had or died of consumption. The defendant's counsel called a physician, who testified that he had attended one of the aunts in her last illness. He was asked to state what her last illness was, and whether or not she ever had or suffered from consumption. This testimony was objected to as inadmissible, under section 834 of the Code, and was excluded, to which ruling the defendant's counsel excepted. The defendant's counsel then called another physician, who testified that he had attended another aunt of the deceased member in her last illness, and was asked to state what that illness was. This question was also objected to on the same ground, and excluded, and exception taken in behalf of the defendant. The defendant's counsel then produced the records of the board of health of Brooklyn, which were identified by the clerk of the department, and offered to prove by the original certificate filed therein by the attending physician the cause of death of the deceased member's two aunts above referred to by the certificate of the respective attending physicians on the occasion of their last illness. The court inquired if the evidence was offered to prove the cause of death, and the defendant's counsel replied that it was. The court thereupon excluded the record, and the defendant's counsel excepted. Thus it will be seen that the question involved in this exception was the right of the defendant's counsel to prove by the certificate of the physician in attendance during the last illness of the deceased's aunts the cause of death, or the particular disease from which they died. It was admitted that the physician had no knowledge on that subject except such as he acquired in his professional capacity, and when the relation of physician and patient existed. That testimony in this character is expressly prohibited by section 834 of the Code cannot be denied. That the proof offered and excluded was inadmissible, I may assume to be a proposition too clear for argument unless the prohibition contained in the section of the Code referred to has been repealed. This court has held that the statements of the attending physician, for the purpose of establishing the cause of death either of the insured himself or of his ancestors or their descendants, although not parties to nor beneficiaries under the contract, were not admissible. They are excluded not only for the purpose of protecting parties from the disclosure of information imparted in the confidence that must necessarily exist between physician and patient, but on grounds of public policy as well. The disclosure by a physician, whether voluntary or involuntary, of the secrets acquired by him while attending upon a patient in his professional capacity, naturally shocks our sense of decency and propriety, and this is one reason why the law forbids it. The form in which the statements are sought to be introduced is of no consequence, whether as a witness on the stand or through the medium of an affidavit or certificate. All are equally under the ban of the statute. Grattan v. Insurance Co., 80 N. Y. 281;Renihan v. Dennin, 103 N. Y. 573, 9 N. E. 320;Redmond v. Association, 150 N. Y. 167-172, 44 N. E. 769;Westover v. Insurance Co., 99 N. Y. 56, 1 N. E. 104;Nelson v. Village of Oneida, 156 N. Y. 219, 50 N. E. 802;Buffalo Loan, Trust & Safe-Deposit Co. v. Knights Templar & Masonic Mut. Aid Ass'n, 126 N. Y. 450, 27 N. E. 942. In the case first cited the defendant sought to prove by the attending physician the nature of the illness of which the mother of the insured died, and in the last case the defendant sought to prove the cause of death by the certificate of the attending physician. In both cases it was held that the proof was properly excluded, and in the latter case Judge Andrews, speaking for a unanimous court, said: ‘The disclosure by a physician of information acquired in his professional capacity in attending a patient, where not made in the course of his professional duty, is a plain violation of professional propriety. * * * The statute should have a broad and liberal construction to carry out its policy. By reasonable construction it excludes a physician from giving testimony in a judicial proceeding in any form, whether by affidavit or oral examination, involving a disclosure of conficential information acquired in attending a patient, unless the seal of secrecy is removed by the patient himself. The verified certificate of the physician which accompained the proofs of loss was not competent original evidence of the cause of death of the insured, nor was it offered as testimony of the physician as to that fact.’ If it be said that the statute hereinafter referred to was not then in force, it must be borne in mind that section 933 of the Code of Civil Procedure was; and that section is as broad as the statute which will be presently considered, if not even more comprehensive.

But the contention of the learned counsel for the defendant is, as of course it must be, that the prohibition contained in section 834 of the Code, as construed by these adjudications has been repealed, not by any amendment to the Code, or by any general law, but by an obscure provision of the charter of the city of New York. Laws 1897, c. 378, § 1172. The five preceding sections in the charter provide for the organization of the health department of the city, and prescribe its powers and duties; enact a sanitary code for the promotion and protection of health within the city, and embrace matters of a purely local character; and then the section cited concludes in these words: ‘The publication of additional provisions in and of additional ordinances of the sanitary code once a week for two successive weeks in the City Record shall be sufficient, and render any further publication of the same in any other newspaper unnecessary. Any violation of said code or its amendments shall be treated and punished as a misdemeanor, and the offender shall also be liable to pay a penalty fo fifty dollars, to be recovered in a civil action in the name of the department of health of the city of New York, before any justice or tribunal in said city having jurisdiction of civil actions; and all such justices and tribunals shall take jurisdictionof such action. Copies of the record of the proceedings of said board, of its rules, regulations, ordinances, by-laws, and books and papers constituting part of its archives, and the sanitary code, now or hereafter in force in said city, and...