Modern Woodmen of America v. Angle
| Decision Date | 25 June 1907 |
| Parties | MODERN WOODMEN OF AMERICA, Respondent, v. ANGLE et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Louisiana Court of Common Pleas.--Hon. David H. Eby Judge.
AFFIRMED.
Judgment affirmed.
Matson & May for appellants.
(1) Defendant Angle was a patient of Dr. Pearson, and therefore Dr. Pearson's testimony of what he learned of Angle's condition while treating him professionally was improperly admitted over Angle's objection. Section 4659, chap. 64 R. S. 1899; Gartside v. Insurance Co., 76 Mo. 446; Thompson v. Ish, 99 Mo. 173; Ex parte Gfeller, 178 Mo. 267; State v. Kennedy, 177 Mo. 129. (2) The plaintiff claims the right to introduce the evidence of Dr Pearson on account of the following language in the application, to-wit: "And I hereby expressly waive for myself and beneficiaries the privilege, or benefits of any and all laws which are now, or may be hereafter in force, making incompetent the testimony of, or disqualifying any physician from testifying concerning any information obtained by him in a professional capacity." Said provision is part of the contract, and if it constitutes a waiver of the statute referred to, then the plaintiff should have plead it as a waiver, and not having done so, could not take the benefit of it at the trial. Kansas City v. Walsh, 88 Mo.App. 271. "To make the issue of waiver, it should have been especially plead in reply." Gartside v. Insurance, 8 Mo.App. 592; Wirup v. Heinrichoffer, 52 Mo. 333; Keller v. Insurance Co., 95 Mo.App. 627. (3) Dr. Crewdson, the camp physician and agent of plaintiff, prepared the application of Angle and wrote the answers without asking Angle to answer them and therefore the plaintiff is bound by its agent's acts. Angle was not asked to answer the questions. Plaintiff's agent wrote and answered them on his own responsibility. Shotliff v. M. W. A., 100 Mo.App. 138; Bushnell v. Insurance Co., 110 Mo.App. 223; Home Circle Soc. v. Shelton, 81 S.W. 84; Temmick v. Mut. Life Ins. Co., 72 Mich. 388; Pudritzky v. Sup. Lodge K. of H., 76 Mich. 428; Parker v. Insurance Co., 34 Wis. 363; Mechler v. Insurance Co., 38 Wis. 665; McDermott v. Modern Woodmen, 97 Mo.App. 636. (4) Before this suit was instituted it was the imperative duty of plaintiff to have tendered back to Angle the money he had paid, together with six per cent interest. Linz v. Insurance Co., 8 Mo.App. 371; Lavin v. Empire L. Ins. Co., 101 Mo.App. 438; Kern v. Legion of Honor, 167 Mo. 471.
Benj. D. Smith, E. E. Campbell and Tunnell & Hart for respondent.
(1) As to the evidence of Dr. Pearson, it is true that he was testifying to facts which came to his knowledge by reason of his professional relations with Angle, and in the absence of the stipulation in the application of Angle for membership in the respondent society, waiving the exemption of the statute, it would have been inadmissible, but the application which was offered in evidence contained a clause expressly waiving the disqualification of the statute, and this rendered the evidence admissible. This court and the other courts of this State have passed on like provisions of similar applications and have expressly upheld the same. Keller v. Insurance, 95 Mo.App. 627. (2) The statutory provision is a privilege conferred in its present application upon defendant Angle. The right of waiving a privilege must be as broad as the privilege itself. Gall v. Tower, 85 Mo. 249; Squires v. Chillicothe, 89 Mo. 226; Blair v. Railroad, 89 Mo. 334; Carrington v. St. Louis, 89 Mo. 208; (3) Also, the rule in Missouri with reference to actions on insurance policies as regards pleading of waiver is different from the rule in other cases, and the universal rule in this State is that in actions of this kind waivers may be proven, though not pleaded. McCullough v. Insurance Co., 113 Mo. 616; Nickell v. Insurance, 144 Mo. 432; Andrus v. Insurance, 168 Mo. 151.
--This suit is in equity and seeks the cancellation of a benefit certificate issued by the plaintiff fraternal society to the insured defendant and payable in event of his prior death to the other defendants, who are the wife and daughter of the insured. It appears the insured defendant has departed this life since the appeal was perfected, his death has been suggested in this court, and the case now stands revived in the name of Amanda Angle, his widow, and administratrix.
It is alleged in the bill in substance, that the insured defendant procured the insurance by means of several false and untrue answers to questions propounded to him by the medical examiner; that such answers were and are warranties on his part; wherefore the plaintiff society prays the certificate induced by and issued in reliance upon the truth of such statements, be cancelled and set aside for breach of the warranties contained in such untrue answers, etc.
The evidence on the part of plaintiff tended to prove that on August 31, 1902, the insured defendant, H. C. Angle, executed his application to the plaintiff society for membership therein and two thousand dollars insurance, payable in event of his prior death, to his wife, Amanda Angle, and his daughter, Myrtle Angle, one thousand dollars each. On the showing made in the application, Mr. Angle was accepted as a proper subject of insurance, and on September 22, the certificate of insurance for two thousand dollars was issued to him and he was duly adopted by the local camp as a member of the order. In order to obtain the issuance of the certificate mentioned, it was essential for the insured to undergo a medical examination by the camp physician of the order and to give satisfactory answers to the following questions contained in the application. Such application, by its terms, and the terms of the certificate, was made a part of the contract of insurance. The questions and answers referred to, as they appear in the application, are as follows:
The insured resided with his family at Louisiana, Missouri. He was and had been for a number of years foreman of bridge carpenters for the C. & A. Railway Company, and during the months of June, July, August and September, 1902, was pursuing his occupation on the C. & A. Railway bridge over the Vermillion river near Pontiac, Illinois. Between thirty and sixty days prior to applying for this certificate, he had a hemorrhage while at work on the bridge mentioned. The facts with respect to this matter are substantially as follows: Dr. Pearson of Pontiac, Illinois, testified that the insured called on him with respect to the matter and informed him he had had a hemorrhage from the lung on that day, that he had been having night-sweats and a cough, and upon examination, he found him then to have a hectic appearance, elevated temperature, dullness over both lungs, etc., and was suffering with pulmonary tuberculosis; that he advised him thereof, and to go to New Mexico. One McAllister gave evidence that about this time, just prior to his taking the insurance, he met the insured on the street in Louisiana and upon asking him why he was at home, the insured stated that he had had five hemorrhages the week before and almost died. A workman who occupied the same car at night with the insured for sleeping purposes, testified that about that time the insured had a troublesome cough which annoyed the others sleeping therein and that he would raise phlegm and some blood thereby. Another fellow-workman testified that the insured showed him some blood on his hand on the day mentioned while working on the bridge. He did not say, however, that the insured spit this blood, but the inference is it was the result of the hemorrhage mentioned. There was evidence also tending to prove that Dr. Crewdson, his family physician, treated him for bronchitis about this time. It also appears that the insured spent three winters succeeding the issuance of the certificate in New Mexico. Texas and Colorado, on account of the favorable climate.
On the part of defendant, the evidence tended to controvert the principal facts above stated. The insured admitted having the hemorrhage mentioned by Dr. Pearson while working in Illinois and admitted calling upon and consulting him thereabout and said Dr. Pearson prescribed for him, giving him a phial of medicine and advised him to go to New Mexico to take a rest. He denied the hemorrhage was from the lungs, however, and denied that he had stated to Dr. Pearson that he was having night-sweats; denied having any cough other than a slight cold, etc. He said that in raising a heavy timber on the bridge, on that occasion, he had strained himself and the hemorrhage was the result of this strain; that he had no lung trouble and although he had been spending the three past winters in a climate regarded most favorable to consumptives, it was not because of lung trouble but because of his eighteen years continuous service on the...
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