Murphy v. Mutual Life Insurance Company of New York, a Corp., 6800

• Decision Date: 10 April 1941
• Docket Number: 6800
• Citation: 112 P.2d 993,62 Idaho 362
• Parties: ANDREW MURPHY, Appellant, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a corporation, Respondent
• Court: Idaho Supreme Court

112 P.2d 993

62 Idaho 362

ANDREW MURPHY, Appellant, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a corporation, Respondent

No. 6800

Supreme Court of Idaho

April 10, 1941

REHEARING DENIED MAY 19, 1941.

INSURANCE-DISABILITY BENEFITS-INSURED'S PHYSICAL CONDITION-EVIDENCE-TESTIMONY OF PHYSICIAN-X-RAY PICTURES-PRIVILEGED COMMUNICATIONS-WAIVER OF PRIVILEGE-ABILITY TO WORK-GAINFUL OCCUPATION-INSTRUCTIONS-APPEAL-ASSIGNMENTS OF ERROR, WHEN NOT CONSIDERED.

1. In action to recover disability benefits under life policy where insured, in application for policy, stipulated that he waived all provisions of law forbidding physician from testifying as to any information acquired by him in attending or examining him, trial court was justified in ordering that certain X-ray pictures taken by a physician in insured's employ be submitted before trial to insurer's physician for examination. (I. C. A., sec. 16-203.)

2. In action to recover disability benefits under life policy where physician who was associated in practice with brother used their office records in testifying, and testified that insured's arthritic condition had been progressive and also that he had a chronic heart disease, reports signed by witness' brother relative to insured's physical condition, which contained no reference to heart trouble were not admissible as part of witness' cross-examination.

3. Where defendant was permitted, over objection, to introduce irrelevant and incompetent evidence, refusal to permit plaintiff to introduce evidence as explanatory of such prior inadmissible evidence was prejudicial error.

4. In action to recover disability benefits under life policy, where there was a conflict as to insured's physical condition throughout entire period of his claimed disability, all evidence thereon was material though some was remote.

5. In action to recover disability benefits under life policy, inter-office communications concerning insured's policy between insurer's Salt Lake City and New York offices were inadmissible as "self-serving declarations," where not shown to have been communicated to insured.

6. In action to recover disability benefits under life policy, an instruction that jury could not find for plaintiff if it should find from evidence that, although plaintiff was sick, diseased, or in some degree afflicted, he continued to perform usual and regular duties of his occupation to extent that he gained a livelihood therefrom, was erroneous, in that it would justify a verdict for defendant if jury found that plaintiff did some work, even though by so doing he was endangering his health or life, and constituted reversible error, where plaintiff by offering his requested instructions sufficiently suggested a correct statement of the pertinent law involved.

7. In action to recover disability benefits under life policy, instructions, as construed together, stated correct definition of term "gainful occupation" as used in the policy.

8. Where appellant neither argued nor cited authorities in support of his assignment of error directed at one of trial court's instructions, such assignment would not be considered.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Action to recover disability benefits under an insurance policy. From a judgment for defendant, plaintiff appeals. Reversed and remanded for a new trial.

Reversed and remanded. Costs to appellant.

Hamer H. Budge, J. W. Galloway, and Walter L. Budge, for Appellant.

A party litigant is not entitled to have X-ray pictures of his adversary delivered to him and his medical witnesses prior to trial, and an order by the trial court requiring such delivery constitutes reversible error. (Aspy v. Botkins, 160 Ind. 170, 66 N.E. 462; Hanson v. Sandvik, 222 P. 205; Smith v. City of Spokane, Wash., 47 P. 888; I. C. A., 16-203, par. 4.)

The reports of the medical examiner of an insurance company are not admissible in evidence except when the medical examiner has been called as a witness. Such reports are hearsay, self-serving, incompetent and privileged. (I. C. A., 16-203, par. 4; Shaw v. City of Nampa, 31 Idaho 347; 17 C. J. 1074, 1075; 70 C. J. 1175; 22 C. J. 485.)

A person is deemed to be totally and permanently disabled under the provisions of this insurance policy when he is unable to perform substantially all the material acts of his occupation. (Couch on Insurance, vol. 7, sec. 1670; Aetna Life Insurance Co. v. Person, 67 S.W.2d 1007; Collins v. Mass. Bonding Co., 260 N.Y.S. 241, Aff. 191 N.E. 507; Temples v. Prudential Ins. Co., 79 S.W.2d 608; Harold v. Aetna Life Ins. Co., 77 S.W.2d 1060; Metropolitan Cas. Ins. Co. v. Cato, 74 So. 114.)

The total disability provision of this policy is one of indemnity against loss of capacity to work, and is not one of indemnity against loss of income. (Goble v. New World Life Ins. Co., 57 Idaho 516, 67 P.2d 280; Stanwick v. Reliance Life Ins. Co., 275 P. 550; Pacific Mut. Life Ins. Co. v. McCrary, 32 S.W.2d 1052.)

Inter-office communications between the head office and a district office of an insurance company containing self-serving statements and admissions by the insured are hearsay and incompetent and extremely prejudicial. (Couch on Insurance, vol. 8, p. 7047; Pierstorff v. Gray's Auto Shop, 58 Idaho 438, 445; Whitman v. McComas, 11 Idaho 564, 570.)

Richards & Haga, for Respondent.

"Total disability" in a policy of insurance does not mean the same as "partial disability," but total disability does not require that the insured shall be absolutely helpless or entirely unable to do anything worthy of compensation. But, as stated by the trial court in its instructions, it means that if the insured is unable to perform the substantial and material acts of any gainful occupation in the usual and customary way, he should be regarded as totally disabled and be entitled to recover. ( Goble v. New World Life Ins. Co., 57 Idaho 516, 67 P.2d 280; Davis v. New England Mutual Life Ins. Co. of Boston, Mass., 263 Ky. 568, 92 S.W.2d 822; Thigpen v. Jefferson Standard Life Ins. Co., 204 N.C. 551, 168 S.E. 845; Boozer v. Equitable Life Assurance Society, 206 N.C. 848, 175 S.E. 175.)

The opinions of medical experts in this case are entitled to no more consideration, and we believe not as much, as the testimony of laymen who have lived as neighbors to appellant, worked with him in the fields and observed his actions and activities. (Mutual Life Ins. Co. of N. Y. v. Dause, 256 Ky. 448, 76 S.W.2d 233; Mutchnick v. John Hancock Mutual Life Ins. Co., (N. Y.) 157 Misc. 598; Siff v. Travelers Ins. Co., 295 N.Y.S. 405.)

The court did not err in permitting the medical expert of respondent to examine the X-ray pictures which appellant had used in another suit between the same parties and which appellant introduced in this case as the basis for his own medical testimony. The court's action in permitting the examination of the X-ray pictures a day or two before the trial simply saved the time of the Court during the trial of the case. No objection was made to respondent's medical expert testifying as to what the X-ray pictures disclosed. The testimony came after the pictures had been introduced by appellant. Furthermore, the X-ray pictures were not privileged as claimed by appellant; the privilege was waived by their introduction and by their use at the previous trial, and the privilege was expressly waived in appellant's application for the policy in these words:

"The insured expressly waives on behalf of himself and of any person who shall have or claim any interest in any policy issued hereunder, all provisions of law forbidding any physician or other person who has attended or examined, or who may hereafter attend or examine the insured, from disclosing any knowledge or information which he thereby acquired. " (Application attached to plaintiff's Exhibit 1.) (Trull v. Modern Woodmen, 12 Idaho 318, 85 P. 1081; N. Y. Life Ins. Co. v. Snyder, 116 Ohio St. 693, 54 A. L. R. 406 and Annotations 54 A. L. R. 412.)

GIVENS, J. Morgan and Holden, JJ., SUTTON, D. J., concurring. SUTPHEN, D. J. (Dissenting).

OPINION

GIVENS, J.

--July 15, 1927, appellant purchased from respondent a life insurance policy, additionally providing for benefit payments for total and permanent disability as follows:

"Section 3

"Total Disability.--Disability shall be considered total when there is any impairment of mind or body which continuously renders it impossible for the Insured to follow a gainful occupation.

"Permanent Disability.--Total disability shall, during its continuance, be presumed to be permanent;

(a) If such disability is result of conditions which render it reasonably certain that such disability will continue during the remaining life time of the Insured; or,

(b) If such disability has existed continuously for ninety days.

"Benefits.

* * * *

"(b) Waiver of Premium.--The Company will also, after receipt of such due proof, waive payment of each premium as it thereafter becomes due during such disability."

Thereafter appellant paid the annual premiums on said policy until December 25, 1929, when he applied for disability benefits and cessation of premium payments because assertedly suffering from arthritis. He thereupon received disability payments covering from December 25, 1929, to and including September, 1930. Payments were then discontinued during the months of October and November, 1930, and resumed again upon further application by appellant from December, 1930, to and including May 27, 1939, when the last payment was made and thereafter again discontinued.

August 14, 1939, respondent wrote appellant's attorney stating it considered appellant no longer disabled and that no...