Metropolitan Life Ins. Co. v. Mcswain, 26777

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtMCGOWEN, J.
Citation149 Miss. 455,115 So. 555
PartiesMETROPOLITAN LIFE INS. CO. v. MCSWAIN. [*]
Decision Date13 February 1928
Docket Number26777

115 So. 555

149 Miss. 455

METROPOLITAN LIFE INS. CO.
v.
MCSWAIN. [*]

No. 26777

Supreme Court of Mississippi

February 13, 1928


Division A

1. WITNESSES. Testimony of physician treating insured, together with hospital records, held property excluded in beneficiary's action on policy after insured's death; "substantive law;" "adjective or remedial law" (Hemingway's Code 1927, section 7455).

Under Hemingway's Code 1927, section 7455 (Code 1906, section 3695), testimony of physician attending insured, together with hospital records containing reports of attending physician, held properly excluded in beneficiary's action on policy after insured's death, since rule declaring communications to physician or surgeon to be privileged creates a rule of adjective law, and not a rule of "substantive law," which is that part of the law which creates, defines, and regulates rights, as opposed to "adjective or remedial law," which prescribes the method of enforcing rights or obtaining redress for their invasion (citing Words and Phrases, Second Series, "Substantive Law").

2. EVIDENCE. Witnesses. Hospital records showing result of examinations of insured held property excluded in beneficiary's action on life policy after insured's death.

In action on life policy, wherein insurer alleged insured had falsely stated that he had not received hospital treatment within five years before application, hospital records consisting of nurses' and doctors' reports showing result of examinations of insured [149 Miss. 456] during such period held properly excluded as constituting hearsay testimony and consisting of statements of physician treating insured while a patient.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Jones county, Second district. HON. R. S. HALL, Judge.

Action by Molly McSwain against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Wells, Stevens & Jones, for appellant.

Welch & Cooper, for appellee.

OPINION [115 So. 556]

MCGOWEN, J.

The Metropolitan Life Insurance Company, appellant here and defendant in the court below, was sued by Molly McSwain, appellee here and plaintiff in the court below, for one thousand dollars, the amount of insurance issued by the appellant on the life of Milous McSwain, appellee's son. In the declaration of appellee it was alleged that the policy was issued on November 2, 1925, that the premiums had been paid in full, and that while same was in force and effect the insured died, the date of his death being March 8, 1926. A copy of the contract of insurance together with the application therefor, was made an exhibit to the declaration.

The defendant pleaded the general issue, and filed two special pleas, one to the effect that the insured answered, in his application for insurance, that he had not received treatment in any hospital within five years next [149 Miss. 457] before his application for insurance, when, in truth and in fact, the insured, Milous McSwain, had been treated, in September, 1925, in the Cook County Hospital, at Chicago, Ill.; and the other to the effect that insured, in his application, answered that he had not had consumption or spinal disease, when, in truth and in fact he had been treated for tuberculosis of the spine and tuberculosis of other joints and organs in Chicago, Ill., at the Cook County Hospital. To these pleas plaintiff tendered issue "in short" by agreement of counsel. The case was submitted to a jury, who returned a verdict and judgment for the plaintiff, and from this judgment the defendant prosecutes this appeal.

We shall set out such other facts as are necessary in the consideration of the several assignments of error.

First. The court, in our opinion, did not commit error in...

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13 practice notes
  • Fant v. Fant, 31702
    • United States
    • Mississippi Supreme Court
    • 10 June 1935
    ...heirs, executors, or administrators of the decedent. McCaw v. Turner, 126 Miss. 260, 88 So. 705; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115. So. 555. Miss Fant had a right, being of sound mind, to execute these deeds without any consideration. Longmyer v. Myer, 86 So. 753, 12......
  • Florida Rules of Criminal Procedure., In re, No. 42218-B
    • United States
    • Florida Supreme Court
    • 6 December 1972
    ...the method of enforcing those rights. Meagher v. Kavli, 251 Minn. 477, 88 N.W.2d 871 (1958); Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555 (1928); Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371 (1937); State v. District Court, 399 P.2d 583 Substantive rights are......
  • Metropolitan Life Ins. Co. v. Evans, 33386
    • United States
    • United States State Supreme Court of Mississippi
    • 14 November 1938
    ...gained professionally. Dabbs v. Richardson, 102 So. 769; Y. &. M. V. R. Co. v. Decker, 116 So. 287; Metropolitan Life Ins. Co. v. McSwain, 115 So. 555; N. O. & N.E. R. Co. v. Jackson, 110 586; Provident Life & Acc. Ins. Co. v. Chapman, 118 So. 437. In the case of Metropolitan Life Ins. Co. ......
  • Franklin Collection Service, Inc. v. Kyle, No. 2005-IA-00988-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 26 April 2007
    ...Additionally, medical records have long been considered privileged under the statute. In Metropolitan Life Insurance Company v. McSwain, 149 Miss. 455, 115 So. 555 (1928), this Court held that hospital records showing the results of medical examinations were covered by the statutory privile......
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16 cases
  • Fant v. Fant, 31702
    • United States
    • Mississippi Supreme Court
    • 10 June 1935
    ...heirs, executors, or administrators of the decedent. McCaw v. Turner, 126 Miss. 260, 88 So. 705; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115. So. 555. Miss Fant had a right, being of sound mind, to execute these deeds without any consideration. Longmyer v. Myer, 86 So. 753, 12......
  • Dixie Greyshound Lines, Inc. v. Matthews, 32273
    • United States
    • United States State Supreme Court of Mississippi
    • 23 November 1936
    ...666; Hunter v. Hunter, 127 Miss. 683, 90 So. 440; Watkins v. Watkins, 142 Miss. 210, 106 So. 753; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555; Dabbs v. Richardson, 137 Miss. 789, 102 So. 769; Yazoo & M. V. R. R. Co. v. Decker, 150 Miss. 621, 116 So. 287; Miss. Power & ......
  • Keeton v. State, 31931
    • United States
    • United States State Supreme Court of Mississippi
    • 6 April 1936
    ...v. Richardson, 137 Miss. 789, 102 So. 769; Watkins v. Richardson, 142 Miss. 210, 106 So. 753; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555.; McCall v. Turner, 126 Miss. 260, 88 So. 705; Y. & M. V. R. R. Co. v. Messina, 109 Miss. 143, 67 So. 963; Newton Oil Mill v. Spenc......
  • Florida Rules of Criminal Procedure., In re, No. 42218-B
    • United States
    • Florida Supreme Court
    • 6 December 1972
    ...the method of enforcing those rights. Meagher v. Kavli, 251 Minn. 477, 88 N.W.2d 871 (1958); Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555 (1928); Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371 (1937); State v. District Court, 399 P.2d 583 Substantive rights are......
  • Request a trial to view additional results

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