Klein v. Prudential Ins. Co. of America

• Decision Date: 13 November 1917
• Citation: 117 N.E. 942,221 N.Y. 449
• Parties: KLEIN v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: New York Court of Appeals Court of Appeals

221 N.Y. 449

117 N.E. 942

KLEIN

v.PRUDENTIAL INS. CO. OF AMERICA.

Court of Appeals of New York.

Nov. 13, 1917.

Appeal from Supreme Court, Appellate Division, First Department.

Action on an insurance policy by Helen Klein against the Prudential Insurance Company of America. From a judgment of the Supreme Court, First Judicial Department (165 App. Div. 986,150 N. Y. Supp. 1092), affirming a judgment of the New York Trial Term, plaintiff appeals. Affirmed.Otto H. Droege, of New York City, for appellant.

Alfred M. Bailey, of New York City, for respondent.

CHASE, J.

On January 6, 1913, the plaintiff's husband made written application to the defendant company for a policy of insurance on his life payable to the plaintiff, the premium for which was $13 payable quarterly in advance. In his application he declared:

‘That the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, the said policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application.’

At the time of making such application he paid to the defendant's agent $2, and received a receipt therefor, in which it was stated that the payment ‘is in no way binding upon the said company except that said company agrees to return the amount mentioned herein in case the company declines to grant a policy on the life of said applicant.’

On January 9th he passed the required medical examination and a policy was issued on January 15th. The policy was handed to the applicant but he was unable to pay the premium therefor, and the agent told him that he was not insured until the balance of the first quareterly premium was paid. From that time until February 14th the agent repeatedly called upon the applicant for the unpaid premium but it was not paid. On the morning of February 14th the agent received the unpaid premium by direction of the applicant at the house of his (applicant's) brother-in-law. On February 12th the applicant had a cold and a slight cough. At 12 o'clock on that day he said to his employer that he was not feeling very well and might stay at home an hour longer than usual, but would be back in the afternoon. He never returned to his work. On February 13th he was attended at his home by a physician. He was then sick. He was taken to a hospital on the morning of February 14th, and died there of peneumonia February 20th.

The plaintiff signed a certificate in proof of her husband's death and it was delivered to the defendant, accompanied by a certificate of the physician who attended him at the hospital. In her certificate she states that her husband's health was first affected February 12th, and in answer to the question ‘What was the cause of his death?’ she referred to the physician's certificate, and she also says therein that it is agreed that the certificate of the physician ‘shall be considered as part or proofs of death of insured.’

This action was brought upon the policy, and the defendant alleged as a defense that when the first premium was paid to the company the applicant's health was not the same as described in his application, and that such fact was not then known to the defendant. The question as to whether his health was the same as described in the application was submitted to the jury and the jury found in favor of the defendant. The judgment entered upon such verdict has been unanimously affirmed by the appellate division. There are but two questions of law presented to us by the appellant: (1) Whether it was error to receive the testimony of the physician who attended the deceased on February 13th, that he was then sick; (2) whether it was error to admit in evidence the affidavit and certificate of the hospital physician accompanying the certificate made by the plaintiff as a part of the proofs of her husband's death.

The prohibition against a physician giving evidence of matters within his knowledge, relating to a patient, is statutory. It is confined to information acquired in attending a patient in a professional capacity and which is necessary to enable him to act in that capacity. Code of Civil Procedure, § 834; People v. Koerner, 154 N. Y. 355, 366,48 N. E. 730;People v. Austin, 199 N. Y. 446, 452,93 N. E. 57.

[1] The code section is not intended to prevent a person from testifying to such ordinary incidents and facts as are plain to the observation of any one without expert or professional knowledge, and without tacitly or otherwise inviting or receiving confidences by which the incidents and facts are or may be brought to light and obtained. It was therefore said by Judge Earl, with the approval of all the members of this court, in Patten v. United Life & Accident Insurance Association, 133 N. Y. 450, 453,31 N. E. 342, 343:

‘There is nothing in section 834 which prohibited the defendant from showing that Patten was the patient of the doctor; that he attended him as a patient, and that he was sick. Nor is...