Metropolitan Life Ins. Co. v. Boddie

• Decision Date: 14 September 1927
• Docket Number: 57.
• Citation: 139 S.E. 228,194 N.C. 199
• Parties: METROPOLITAN LIFE INS. CO. v. BODDIE et al.
• Court: North Carolina Supreme Court

139 S.E. 228

194 N.C. 199

METROPOLITAN LIFE INS. CO. v. BODDIE et al.

No. 57.

Supreme Court of North Carolina

September 14, 1927

Appeal from Superior Court, Nash County; Nunn, Judge.

Action by the Metropolitan Life Insurance Company against Ruth Boddie and another. Judgment for plaintiff, and defendants appeal. New trial.

This action was commenced by the plaintiff against the defendants to compel the cancellation of Metropolitan Life Insurance Company policy No. 3644819, on the life of Carlton H. Boddie for that the statements and representations, as contained in the application, were untrue, material, and fraudulent. The defendants, widow and administrator of the deceased, deny the material allegations of the complaint, and deny that the deceased made any false representations to the knowledge of the defendants and allege that if any misrepresentations appeared in the policy they were immaterial, and not fraudulent.

Austin & Davenport and D. W. Perry, all of Nashville, for appellants.

Winston & Brassfield, of Raleigh, for appellee.

CLARKSON J.

Dr. J A. Winstead was introduced as a witness for the plaintiff and stated that he knew Carlton H. Boddie, defendant G. C. Collins' intestate, and was his family physician since 1919. The defendants objected. The objection was overruled, exception and assignment of error were duly made. The testimony of Dr. Winstead was offered for the purpose of showing that the statements and representations as contained in the application for the policy in plaintiff's company were untrue. The application was dated May 29, 1923. The policy was issued June 2, 1923.

C. S. § 1798, is as follows:

"Communications between Physician and Patient. No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, that the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice."

In Fuller v. Knights of Pythias, 129 N.C. 318, 40 S.E. 65, 85 Am. St. Rep. 747, it is held that a person in his application for insurance may waive the right to object to the evidence of a physician acquired while attending him, and the physician may be compelled to testify. In the application now under consideration, there was no waiver clause as in the Fuller Case.

In Smith v. Lumber Co., 147 N.C. 62, 60 S.E. 717, 125 Am. St. Rep. 535, 15 Ann. Cas. 580, the testimony of the physician did not come within the purview or scope of the statute.

In State v. Martin, 182 N.C. 846, 109 S.E. 74, the defendant, Martin, was indicted for procuring the miscarriage or abortion of Rosa Yow, a pregnant woman. Dr. Mimms attended her, and his testimony related to a conversation implicating the defendant. The privilege is for the benefit of the patient alone-Rosa Yow-not defendant Martin. In the Martin Case, the court said, at page 850 (109 S.E. 76):

"If the privilege is for the benefit of the patient alone, how can the defendant invoke its aid? Even if it be contended that the privilege was available to him on the ground that some of the communications were made in his presence, that Rosa became a party to the crime by consenting to the abortion, that she is living, and the physician's testimony would tend not only to convict him, but to discredit her, and that the evidence objected to was for these reasons incompetent, a complete answer is found in the proviso of the statute and in his honor's

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