Hassing v. Mutual Life Ins. Co. of New York

• Citation: 108 Utah 198,159 P.2d 117
• Decision Date: 23 May 1945
• Docket Number: 6780
• Court: Utah Supreme Court
• Parties: HASSING v. MUTUAL LIFE INS. CO. OF NEW YORK

159 P.2d 117

108 Utah 198

HASSING v. MUTUAL LIFE INS. CO. OF NEW YORK

No. 6780

Supreme Court of Utah

May 23, 1945

Appeal from District Court, Second District, Weber County; A. H Ellett, Judge.

Suits by Chloie P. Hassing against the Mutual Life Insurance Company of New York to recover on three life policies. One of the cases was tried and verdict and judgment were entered for plaintiff, and defendant appeals.

Affirmed.

Farnsworth & Van Cott, of Salt Lake City, and Morris Blaine Peterson, of Ogden, for appellant.

David J. Wilson and Howell, Stine &amp Olmstead, all of Ogden, for respondent.

Wade Justice. Larson C. J., and McDonough, Turner, and Wolfe, JJ., concur.

OPINION

Wade, Justice.

The Mutual Life Insurance Co. of New York, a corporation, the defendant and appellant herein, had issued three life insurance policies on the life of Clifford E. Hassing, wherein Chloie P. Hassing, the plaintiff and respondent herein, was named as beneficiary in each. Hereafter in this opinion these parties shall be called plaintiff and defendant, respectively.

Clifford E. Hassing died as the result of being run over by a train and plaintiff filed three suits on the three insurance policies issued by the defendant to recover under the double indemnity provisions of these policies. One of these cases was tried and a verdict and judgment was entered in favor of plaintiff from which defendant appeals.

The evidence discloses that on November 20, 1941, an acquaintance encountered Clifford E. Hassing walking west on the north side of 24th Street in Ogden, Utah, and the two walked together to the intersection of 24th Street and Lincoln Avenue. Hassing appeared to be in a pleasant mood. When they arrived at this corner a Bamberger train going south was pulling out of the station thus blocking them from continuing west across the street. Hassing's companion being in a hurry decided to cross to the south side of the street and then turn west before the train could block him on that side. When he arrived on the south side he turned back to look and see how far the train had progressed, in doing so he saw Mr. Hassing walking out to the center of the street directly to the side of the train. As he looked Mr. Hassing appeared to go down to his knees and his head went under the wheel of the train. When he went down his hands were in his coat pockets. Mr. Hassing died as a result of this accident.

Another witness to this occurrence was in a service station on the northeast side of 24th Street and Lincoln Avenue. He testified he saw a man (Hassing) on the curb and as he watched, this man walked out to the train, stopped, stooped over and appeared to be looking under the train, when he went headlong into the wheels of the train.

The double indemnity clause in the policy under which plaintiff obtained her judgment provided that the double indemnity would be payable upon receipt of due proof that the insured died as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes,

"provided, however, that the Double Indemnity shall not be payable in the event of the Insured's death * * * at any time by his own act, whether sane or insane, * * * or directly or indirectly from bodily or mental infirmity or disease of any sort."

For a great number of years prior to his death the insured had been suffering from a chronic infection of his inner ear. In 1936 and 1937 the labyrinth of the ear which is the organ which regulates the equilibrium of a person had become inflamed and this had caused him to feel dizzy and suffer from vertigo. In March of 1941 he had suffered a heart attack and was not able to work from that time on.

During the course of the trial the defendant offered to prove by the testimony of a Dr. Hetzel, who had been insured's physician for a number of years, that the insured had been suffering from an ailment of the inner ear and had continued to so suffer up to the day of his death. The court upon objection from plaintiff refused to allow the doctor to testify to any information he received as to the deceased's physical condition because the relationship of physician and patient made such information privileged communications, unless the information was obtained for the purposes of the policy.

Defendant assigns this refusal to admit the testimony of Dr. Hetzel as error. It contends that although under Sec. 104-49-3, U. C. A. 1943, subsection 4, which provides:

"A physician or surgeon cannot, without the consent of his patient, be examined, in a civil action, as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient."

Yet in this case the insured had waived this privilege because in his application for the policy he expressly consented to waive the privilege which our statute grants him. The provision in his application reads as follows:

"I expressly waive, on behalf of myself and of any person who shall have or claim any interest in any policy issued hereunder, all provisions or law forbidding any physician or other person who has attended or examined me, or who may hereafter attend or examine me, from disclosing any knowledge or information which he thereby acquired * * *."

Plaintiff in her brief concedes that the privileged communications between physician and patient may be waived by the patient, but contends that the court did not err in refusing to admit defendant's proffered testimony of Dr. Hetzel because neither by its pleadings nor by its offer of proof was its relevancy disclosed to the court. Defendant had not pleaded as a defense to the action that the disease from which deceased was suffering was the direct cause of the accident which resulted in his death and the proffer of proof of this disease also did not enlighten the court as to its relevancy in connection with the accident which caused the death. We have examined the record carefully and find that the proffered testimony was excluded by the court because the proffer did not limit it to information obtained by the physician in connection with the policy, apparently limiting any testimony of the physician to any information obtained pertaining to the obtaining of the policy. It is our opinion that the court erred in refusing to receive the proffered evidence. The waiver given by the deceased was very broad in its terms and did not limit its consent to have disclosed only those ailments which a physician discovered or which had been disclosed to him for the purpose of obtaining the policy. In New York Life Insurance Co. v. Snyder, 116 Ohio St. 693, 158 N.E. 176, 179, 54 A. L. R. 406, the court construed a similar waiver by an insured and in holding that the lower court erred in refusing to admit the testimony of physicians on the ground that it was privileged communications, said:

"* * * Surely the insurance company has a clear right to say to an applicant for insurance, 'We will not issue a policy of insurance to you unless you give to the company full and complete authority to acquire any information which any physician may now possess or may hereafter possess concerning the state of your health at the time of taking out the policy.' * * *"

See also the annotation in 54 A. L. R. commencing on page 412. However, due to the fact the record discloses that defendant was allowed to and did introduce by the testimony of another physician the facts pertaining to the disease from which deceased suffered and which disease was the same which it proffered to prove by the testimony of Dr. Hetzel, and that this evidence was not contradicted, it is our opinion that this error was not prejudicial to defendant and under the circumstances it is not reversible error.

Defendant also assigns as error the court's refusal to admit in evidence a report by Dr. Hetzel purportedly made in support of an...