Metropolitan Life Ins. Co. v. Evans

• Citation: 183 Miss. 860,184 So. 426
• Decision Date: 14 November 1938
• Docket Number: 33386
• Court: United States State Supreme Court of Mississippi
• Parties: METROPOLITAN LIFE INS. CO. v. EVANS

184 So. 426

183 Miss. 860

METROPOLITAN LIFE INS. CO. v. EVANS

No. 33386

Supreme Court of Mississippi, Division A

November 14, 1938

(Division A.)

1 WITNESSES.

Where insured voluntarily presented himself to physician employed by insurer to make physical examination of insured and report result thereof to insurer and not for purpose of receiving treatment, the expense of the examination being paid by the insurer, privilege of statute relating to communications made to physician by patient did not arise and was waived, since insured was not "patient" of physician seeking professional advice within statute (Code 1930, sec. 1536).

2 WITNESSES.

In action on total disability clause of life policy wherein insured testified as to his physical condition, refusal to compel insured to submit to physical examination as he sat in the witness chair as to his heart, blood pressure, prostate gland, abdomen and legs was not error where insured had made no exposure of his person in connection with his testimony or had otherwise waived the inviolability of his person, since no part of examination could have been made without an exposure of some portion of his person.

3 TRIAL.

In action on total disability clause of life policy, instruction that jury should find for plaintiff if as result of disability complained of common prudence would keep insured from performing work of any character, even though he made effort and had physical strength to perform some work with pain and suffering was erroneous as assuming that insured was in fact suffering from disability complained of.

4 TRIAL.

In action on total disability clause of life policy, instruction that jury should find for plaintiff if plaintiff was unable to do manual labor and was not fitted by training to perform any other kind of work for remuneration or profit in a substantial way was erroneous in that it permitted insured to recover if unable to do manual labor without connecting inability to do manual labor with particular causes complained of in declaration.

5 TRIAL.

In action on total disability clause of life policy, refusal of instruction that mere fact that insured could not then obtain employment as a sawmill laborer because of his infirmity, if any, did not entitle him to a verdict was not error, since instruction was argumentative, a charge on the weight of evidence and singled out and gave undue prominence to certain portions of evidence to exclusion of remainder.

6. INSURANCE.

In action on total disability clause of life policy, wherein insured claimed to have been permanently and totally disabled on or about August 17, 1937, refusal of instruction that jury should find for insurer unless they believed that work done by insured on or prior to August 17, 1937, unduly endangered his life or health, was not error, since disability prior to date designated although of evidential value was not determinative of right to recover.

7. INSURANCE.

Under total disability clause of life policy, insurer was not relieved from liability if insured could have continued to work without unduly endangering his life or health, but although insured may have been able to continue at work, it was unnecessary for him to do so if common care and prudence under the circumstances so required.

HON. W. J. PACK, Judge.

APPEAL from the circuit court of Jones county, HON.W. J. PACK, Judge.

Action on a total disability clause of a life policy by Daniel Evans against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Wells, Wells & Lipscomb, of Jackson, and Welch & Cooper, of Laurel, for appellant.

We earnestly and seriously contend that the testimony of Dr. Joe Green was competent and the court erred in excluding his testimony. The court excluded the testimony of Dr. Green and overruled the motion for a continuance on the ground that the testimony of Dr. R. H. Cranford was incompetent, holding that under Section 1536, Mississippi Code of 1930, the testimony of both Dr. Cranford and the testimony of Dr. Green would not be admissible. We earnestly urge that this was error. We urge that Section 1536, Mississippi Code of 1930, has no application. Daniel Evans was not a patient of Dr. Green nor was he a patient of Dr. Cranford. The relation of physician and patient did not exist. The communication in order to be privileged must be between a physician and a "patient under his charge or by one seeking professional advice." The statute is plain and unambiguous.

What can be the difference between a person submitting himself to examination by a physician employed by a life insurance company for the purpose of determining if the company will insure the life of the person examined, and going to the physician after the policy has been issued to determine if there is a disability.? It has been held in a number of cases that in the case of an applicant for insurance, the relation of patient and physician does not exist and the physician may disclose what he has ascertained as to the condition of the applicant.

Travelers Ins. Co. v. Pomerantz, 218 A.D. 431, 218 N.Y.S. 490; Lynch v. Germania Life Ins. Co., 132 A.D. 571, 116 N.Y.S. 998; Moutzoukos v. Mutual Benefit Health & Acc. Assn., 69 Utah 309, 254 P. 1005; McGinty v. Brotherhood of Railway Trainmen, 166 Wis. 83, 164 N.W. 249; City of Cherokee v. Aetna Life Ins. Co. of Hartford, 215 Iowa 1000, 247 N.W. 495; 70 C. J. sec. 590; 28 R. C. L. 539, sec. 129; Travelers Ins. Co. of Hartford v. Bergeron, 25 F.2d 680, 58 A.L.R. 1127.

In a note to the case of Bassil v. Ford Motor Co., 278 Mich. 173, 270 N.W. 258, 107 A.L.R. 1491, the annotator says: "The general rule, in jurisdictions having a statute prohibiting a physician or surgeon from disclosing information acquired in attending a patient in a professional capacity, is that where the physician or surgeon is consulted for the purpose of examination only, and not for treatment, communications made to him, or information acquired by him, on such examination are not privileged."

Norwood v. State, 158 Miss. 550, 130 So. 733; McGuire v. C. & A. R. R. Co., 178 S.W. 79, L.R.A. 1915F 888;

In this case Daniel was examined by Dr. Green for the purpose of enabling Dr. Green to inform the defendant with respect to the condition of Daniel. Dr. Green was not to treat or advise Daniel nor was he to perform any professional service for Daniel's benefit.

Wood v. Lisben, 138 Iowa 402, 116 N.W. 143, 128 Am. St. Rep. 208, 16 L.R.A. (N.S.) 886.

We have no criticism to make of the privilege communication statute as written. It is the interpretation that has been put upon it that is altogether wrong. So long as the statute stands on our books, it should be enforced of course, but the statute is in derogation of the common law and no strained construction should be put on this statute to prevent the ascertainment of truth.

If we are altogether wrong in what we have heretofore said we now earnestly insist that the statute was waived by the plaintiff.

A waiver is to be predicated not only when the conduct indicates a plain intention to abandon the privilege, but also when the conduct (though not evincing that intention) places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege. It is not to be both a sword and a shield.

4 Wigmore on Evidence, sec. 2388; Dixie Greyhound Lines, Inc., v. Matthews, 177 Miss. 103, 170 So. 686; Chicago, etc., Ry. Co. v. Langston, 19 Texas Civ. App. 568, 47 S.W. 1027, 48 S.W. 610; Keeton v. State, 175 Miss. 631, 167 So. 68; Epstein v. Penn. Ry. Co., 250 Mo. 1, 156 S.W. 699, 48 L.R.A. (N.S.) 394.

We come now to the question of the error of the court in refusing to permit an examination of the plaintiff while he was on the stand. The plaintiff testified at great length as to his infirmities. While it is not claimed that there was an exposure of a part of his anatomy not ordinarily exposed to the public, we do say that the plaintiff testified at great length as to his infirmities and at least once indicated a part of his body affected by disease.

It is a matter of common knowledge that the taking of the blood pressure of a patient is painless and that it is not subject to embarrassment, and that the same could have been done quickly and efficiently in the presence of the court, and the jury could have been advised definitely and positively as to the blood pressure. It is also a matter of common knowledge that an examination of the heart of the plaintiff by percussion and auscultation could have been made quickly, efficiently and without pain, without embarrassment and without delaying the court. The other examinations if not properly made before a jury could have been made, nevertheless, by a doctor quickly, without delay in the trial of the case and without embarrassment to the plaintiff and without doing the plaintiff harm. We submit that the refusal by the court to permit these examinations was error in the face of the case of Dixie Greyhound Lines, Inc., v. Matthews, 177 Miss. 103, 170 So. 686, 108 A.L.R. 134.

Teche Lines, Inc., v. Bounds, 179 So. 747.

The instruction given for the plaintiff reads as follows "The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence in this case that the plaintiff is unable to do manual labor, it is your sworn duty to find for the plaintiff; if you further believe from a preponderance of the evidence that the plaintiff is not fitted by training and experience to perform any other kind of work for remuneration or profit in a substantial way." This instruction is wrong for the reason that it authorized...