Fuller v. Knights Of Pythias

• Decision Date: 10 December 1901
• Citation: 129 N.C. 318,40 S.E. 65
• Court: North Carolina Supreme Court
• Parties: FULLER v. KNIGHTS OF PYTHIAS.

40 S.E. 65

129 N.C. 318

FULLER

v.KNIGHTS OF PYTHIAS.

Supreme Court of North Carolina.

Dec. 10, 1901.

INSURANCE — LIFE POLICY — APPLICATION — KNOWLEDGE OF PHYSICIANS—WAIVER OF PRIVILEGE—APPEAL—EXCEPTIONS.

1. In an action on a life policy, the application for which waived any provision of law excusing any physician from testifying as to information acquired while attending insured, the court instructed physicians not to testify to such information, and on appeal plaintiff contended defendant had not excepted to the instruction. An "additional statement" added to the case on appeal stated no such exception taken, but the record showed that before the application was admitted in evidence questions put by defendant to physicians seeking to obtain information acquired by them while attending insured were excluded and excepted to, and the "statement" recited that the court ruled on the admission of evidence as if the application had been in evidence. Held, that it was shown that the exception was taken and became competent on the introduction of the application.

2. Acts 1885, c. 159, declares that no physician shall be required to disclose information acquired in attending a patient which was necessary to enable him to prescribe for him, provided that the judge may compel such disclosure if necessary tor the administration of justice. The application for a life policy contained a stipulation that the insured waived all provisions of law excusing or prohibiting any physician from disclosing information acquired by attending insured. Held, that the waiver in the application was binding on the beneficiary.

Appeal from superior court, Robeson county; Moore, Judge.

Action by Mamie Fuller against the Knights of Pythias. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action was brought by the plaintiff, the widow and beneficiary, to recover the sum of $1,000 upon a policy of insurance issued upon the life of J. R. Fuller. The policy was issued and based upon the statements and agreements contained in his application, and made a part of the contract. Defendant resisted the recovery upon the grounds: First, that the death of the assured was caused or superinduced by the use of intoxicating liquors, or by the use of narcotics or opiates, in violation of the contract set out in the application; and, second, that the assured, in his application for insurance, falsely stated that he was not and had not been afflicted with any disease of the heart, in breach of his warranty of the truth thereof, whereby he forfeited the benefit provided in the policy; and upon the. trial claimed the right to prove such cause of death and false statement by his physicians. Dr. McMillan and Dr. Pope, under a waiver contained in the application, in the following words: "And I hereby, for myself, my heirs, assigns, representatives, and beneficiaries, expressly waive any and all provisions of law now or hereafter in force prohibiting or excusing any physician here tofore or hereafter attending me, professionally or otherwise, from disclosing or testifying to any information acquired thereby, or making such physician incompetent as a witness; and hereby consent that any such physician may testify to and disclose any information so derived or received in any suit or proceeding wherein the same may be material." In its answer defendant set up the application as a part of the contract (Bobbitt v. Insurance Co., 66 N. C. 70, 8 Am. Rep. 494), and relied upon the terms and conditions therein stated as specifically averred. In addition to the case on appeal made out and certified on the 16th day of September, 1901, there appears the following, which counsel agreed (agreement filed in this court) shall be inserted in and made a part of the ease, to wit: "At the request of counsel for defendants, and without notice to the plaintiff or her counsel, I make the following statement, to be added to the case on appeal heretofore settled in this action: The defendants offered the application for the policy of insurance sued on, as I now remember, as their first piece of evidence. The plaintiff objected upon the ground that the paper offered by the defendants had not been proved to be what it purported to be. Thereupon the defendants offered certain evidence for the purpose of proving it, but were unable to prove it. The court then stated to the defendants' counsel that they could go on with their evidence, and that the order in which the application was introduced was of no importance. Certain exceptions to the admission and exclusion of evidence were then taken by the defendants during the examination of their witnesses. The court made the rulings so excepted to, which appear in the statement of case on appeal heretofore settled, as though the said application had been in evidence when they were made. In other words, the court ruled as matters of law that the evidence offered was competent or incompetent, as shown in the statement of case on appeal, just as it would have done if the application had been admitted before such rulings were made. Near the close of the defendants' evidence the court announced that a new trial would be ordered unless the plaintiff would withdraw her objection to said application, and such objections were then withdrawn, and the said application was admitted without objection. I intended to insert the foregoing statement, or a similar statement, in the case on appeal heretofore settled, immediately after the statement that the application was introduced, but inadvertently failed to do so. At the request of counsel for defendants, and without notice to the counsel ...