Holden v. Metro. Life Ins. Co.
| Decision Date | 27 November 1900 |
| Parties | HOLDEN v. METROPOLITAN LIFE INS. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, Third department.
Action by Mary C. Holden against the Metropolitan Life Insurance Company. From an order of the appellate division, and from a judgment thereon (42 N. Y. Supp. 310) affirming the judgment of the trial court, which directed a verdict in favor of defendant dismissing the complaint, plaintiff appeals. Reversed.
The action was upon a policy of insurance issued by the defendant upon the life of Charles R. Harris, payable to his legal representatives. The plaintiff claims $2,500, the amount of such policy under and by virtue of two assignments to her, one of $2,000, and the other of $500.
Edgar T. Brackett, for appellant.
John De Witt Peltz, for respondent.
The defense interposed was a breach of warranty by the insured, in that the representations contained in his application to the effect that no brother of his had ever had consumption, and that the insured had never had bronchitis or dyspepsia, or been attended by any physician therefor, were false and untrue. On the trial the defendant called as a witness James T. Sweetman, who was a practicing physician, and acquainted with the insured in his lifetime. He testified that he was one of the attending physicians during the last illness of the insured; that he knew him a tittle over two years before his death; and that he attended him professionally previous to his last illness, to the best of his knowledge, in January and in April, 1893. The defendant then asked the witness the following question: ‘What was his physical condition in January, 1893, and April, 1893, when you attended him?’ To this the plaintiff objected, upon the ground that it called for a confidential communication, which the physician could not disclose, was within the inhibition of section 834 of the Code of Civil Procedure, and improper and immaterial. The plaintiff's counsel then stated that on behalf of the personal representatives of the decedent he claimed the privilege given by section 834 of the Code of Civil Procedure, and expressly refused to waive the provisions thereof. The court overruled the plaintiff's objections upon the ground that an express waiver of the provisions of section 834 was contained in the application for the policy, and that such waiver was effective and binding upon the plaintiff and the personal representatives of the decedent. To this ruling the plaintiff excepted. The witness answered that the decedent was suffering from acute bronchitis when he saw him in January, 1893, and that it was commonly called a very acute and very severe case. The witness was then asked if he prescribed for Mr. Harris in April, 1893, and for what disease. This was objected to as immaterial, and calling for a confidential communication, improper, and not tending to show a violation of any of the warranties in the application or policy. This objection was overruled, and the plaintiff excepted. The witness then testified: ‘Harris came to me in April, 1893, and required my services, and I prescribed for him for dyspepsia.’ Under the same objections and ruling, the witness was also permitted to testify that he attended the insured during his last illness, and that he was suffering from phthisis or consumption. This answer was permitted after the witness had testified that whatever knowledge he obtained was necessary for him to prescribe for the patient.
Section 834 of the Code of Civil Procedure provides: ‘A person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity.’ That the evidence of Dr. Sweetman, which was admitted under the objection and exception of the plaintiff, was plainly within the inhibition of section 834, is not and cannot be successfully denied. But the defendant insists, as the courts below have held, that the provisions of section 836 of the Code permitted the decedent to waive that privilege, and that it was expressly waived in the application signed by him. There is no claim of any other waiver....
To continue reading
Request your trial
-
Miller v. Pacific Mut. Life Ins. Co., Civ. No. 1767.
...the more stringent prohibition, and the patient's waiver of the privilege was of no force or effect. Holden v. Metropolitan Life Insurance Co., supra (165 N.Y. 13, 17 58 N.E. 771). It has been the policy of the Legislature and the courts of this state to protect this privilege. The waiver c......
-
In re Associated Gas & Electric Co.
...with certain exceptions not here applicable, must be in open court on the trial of the action or proceeding. Holden v. Metropolitan Life Insurance Co., 165 N.Y. 13, 58 N.E. 771, reargument denied 165 N.Y. 647, 59 N.E. 150. While the waiver must be in open court, it need not be expressed in ......
-
Supreme Lodge, Knights of Pythias v. Henrietta Meyer
...affect the waiver. But the certificate of insurance in the case at bar was made after the amendment to § 836. In Holden v. Metropolitan L. Ins. Co. 165 N. Y. 13, 58 N. E. 771, it was held that the statute, by virtue of the amendment, 'in positive and express terms, requires the waiver to be......
-
Meyer v. Supreme Lodge K.P.
...representatives of the deceased patient. Such a waiver was refused at this trial. Our recent decision in Holden v. Metropolitan Life Ins. Co., 165 N. Y. 13, 58 N. E. 771, justified the ruling below upon the question of the force of the waiver in the insurance contract. Theretofore it had be......