Mutual Life Insurance Company of New York v. Owen

• Decision Date: 23 February 1914
• Citation: 164 S.W. 720,111 Ark. 554
• Parties: THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. OWEN
• Court: Arkansas Supreme Court

164 S.W. 720

111 Ark. 554

THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. OWEN

Supreme Court of Arkansas

February 23, 1914

Appeal from Faulkner Circuit Court; Eugene Lank-ford, Judge modified and affirmed.

STATEMENT BY THE COURT.

This is an action upon a life insurance policy on the life of Owen J Owen. By the terms of the policy, The Mutual Life Insurance Company of New York, upon proof of the death of the insured promised to pay his executors or administrators the sum of ten thousand dollars. The policy further provides as follows:

"This policy and the application herefor, copy of which is endorsed hereon or attached hereto, constitute the entire contract between the parties hereto. All statements made by the insured shall, in the absence of fraud, be deemed representations, and not warranties, and no such statement of the insured shall avoid or be used in defense to a claim under this policy unless contained in the written application herefor, and a copy of the application is endorsed on, or attached to, this policy when issued."

A. C Remmel, who was employed in the office of H. L. Remmel, the general agent of the company for the State of Arkansas solicited the insurance, and a written application therefor was made on the 10th day of February, 1912. The local medical examiner of the insurance company at Conway, Arkansas, where the insured resided, was Dr. George S. Brown. The examination of the insured, however, was made by Dr. George L. Henderson, of Greenbriar, Faulkner County, who was also medical examiner for the company. The policy was issued on the 26th day of February, 1912, and delivered to the insured. On the 15th day of November, 1912, the insured died suddenly at Hot Springs, Arkansas, of heart disease while he was attending a postmaster's convention at that place. The defendant company admitted the issuance of the policy, and that proof of death had been made in accordance with the terms thereof, but defended on the ground that the insured had made false representations in his application for insurance, which avoided the policy. The insurance company introduced evidence tending to show that at the time the insured made his application for insurance, he was suffering from organic heart trouble, with progressive tendencies, and had been for more than a year prior thereto, and that he knew of this fact. On the other hand, the plaintiff introduced testimony tending to show that the insured had never suffered with organic heart trouble prior to his application for insurance in the defendant company, and that at the time the insurance policy sued on was issued, and the application therefor made, he was in good health, and sound physically.

The evidence will be stated more in detail, under appropriate headings, in the opinion. The jury returned a verdict in favor of the plaintiff, and the insurance company has duly prosecuted an appeal to this court from the judgment rendered.

Judgment affirmed.

Frederick H. Allen, Rose, Hemingway, Cantrell & Loughborough and J. C. Clark, for appellant.

1. The application contained no provision waiving the privilege of a physician to refuse to testify as to information acquired while attending the applicant in a professional character. It was error to exclude the testimony of Doctors McCollum and Smith. 19 Minn. 524; 10 N.Y.S. 508, 57 Hun 76; 8 N.Y.S. 863, 57 N.Y.S. 496; 5 N.Y.S. 235; 106 N.Y. 298-304; 129 N.Y. 654, 29 N.E. 951; 112 N.Y. 515; 77 N.Y. 564; 31 Ark. 685; 92 S.W. 363.

2. The evidence clearly discloses that Owen practiced intentional deception in making his application, and the court erred in holding that his misrepresentations as to attendance by a physician did not vitiate the policy. 58 Ark. 538; 72 Ark. 620; 58 Hun 366; 12 N.Y.S. 172; 77 Ill.App. 440; 26 N.E. 230, 153 Mass. 176; 9 A. 766, 49 N.J.L. 587; 36 App. D. C. 8; 42 N.Y.S. 228; 69 S.E. 936; 81 S.W. 1012; 96 S.W. 778; 60 F. 727; 108 F. 487; 58 A. 502; 64 A. 109.

Samuel Frauenthal and R. W. Robins, for appellee.

1. The trial court correctly ruled that the testimony of Doctor Smith, offered by appellant, was privileged, and there was no error in excluding it. Kirby's Dig., § 3098; 3 Cooley's Briefs on Law of Insurance, § 2135-2137; 112 U.S. 250; 27 L. R. A. (N. S.) 326, note; 80 N.Y. 286; 92 N.Y. 274; 126 Mich. 177; 100 Ind. 92; 98 Ark. 352; 103 Ark. 201; 106 Ark. 91; 7 Am. St. Rep. 409; 67 N.Y. 185; 25 Utah 220. The rule applies to consulting physicians, as well as to the family physician or the one employed by the patient. 103 N.Y. 573, 57 Am. Rep. 570; 53 Hun (N. Y.) 637; 113 Wis. 508; 17 Am. St. Rep. 552-558; 148 N.Y. 88; 123 Ind. 384; 5 Hun (N. Y.) 1; 24 Hun (N. Y.) 43.

No prejudice is shown on account of the exclusion of this testimony, because appellant has failed to show what it could prove by Doctor Smith. 92 Ark. 509; 105 Ark. 230-233.

As to Doctor McCollum, we think he was permitted to testify fully. However, in his case also appellant has not shown what it expected to prove by him.

2. The policy was not vitiated by Owen's answer as to attendance by a physician, even if it be deemed to be in the application for the policy. By the terms of the policy itself, the answer was only a representation, and not a warranty.

To avoid a policy for misrepresentation, the false statement must have been made wilfully and with intent to deceive. 105 Ark. 101; Cooley's Briefs, § 1956.

The policy specifically provides that the policy itself and the application therefor should constitute the entire contract between the parties. It thereby excluded any other paper or document, including the medical examination where alone the representation appears to which objection is made. 108 Ark. 511; 96 Ark. 495-498; 89 Ark. 283.

3. There was no error in admitting the Remmel letter in evidence; but if it was improperly admitted no prejudice resulted because the matters contained therein were testified to by Mr. Remmel without objection, and were not contradicted. 74 Ark. 417; 76 Ark. 277; 77 Ark. 74; 88 Ark. 135; 96 Ark. 276; 98 Ark. 61; 99 Ark. 302.

OPINION

HART, J., (after stating the facts).

Dr. George S. Brown was a practicing physician at Conway in 1911 and 1912, and attended Owen J. Owen, as a physician, whenever he was sick. In 1911, on May 11 and May 27, he examined and prescribed for Owen. On May 28 and May 29 he visited him each day. On May 31st he visited him. On June 22 and 23, each, he prescribed for him. He also prescribed for him on the 9th of August and the 14th day of October. This was during the year 1911. On the 18th of February, 1912, he visited the insured, at night, as a physician. On May 31, 1911, when Doctor Brown went to see the insured, he took Dr. Morgan Smith, of Little Rock, with him. Doctor Smith had gone to Conway to deliver a lecture on public health, and was a guest of Doctor Brown. Doctor Brown invited Doctor Smith to go with him to see his patients, and Doctor Smith accompanied him and was present when he examined and prescribed for the insured. The court held that both Doctor Brown and Doctor Smith were incompetent to testify in the case.

It is conceded by counsel for the insurance company that the court correctly held as to Doctor Brown, but they assign as error calling for the reversal of the judgment the action of the court in refusing to permit Doctor Smith to testify.

At common law, there was no privilege as to communications between physician and patient, but now the statutes of most of the States forbid the disclosure by a physician, against the will of a patient, of communications from the patient or information concerning the patient acquired by the physician in his professional capacity. Section 3098 of Kirby's Digest, is as follows:

"No person authorized to practice physic or surgery, and no trained nurse, shall be compelled to disclose any information which he may have acquired from his patient while attending him in a professional character, and which information was necessary to enable him to prescribe as a physician, or to act for him as a surgeon or trained nurse."

The purpose of section 3098 of Kirby's Digest is to cover the relation of physician and patient with the cloak of confidence, and thus to allow a greater freedom in their communications to each other in regard to matters touching the disease of the patient. Such statutes are enacted as a matter of public policy to prevent physicians from disclosing to the world the infirmities of their patients.

In the case of Renihan v. Dennin, 103 N.Y. 573, 57 Am. Rep. 770, 9 N.E. 320, information obtained by a physician who was requested by an attending physician to be present for consultation relative to his patient's disease and treatment was held privileged. In Raymond v. Burlington, C. R. & N. Rd. Co., 65 Iowa 152, 21 N.W. 495, a communication to a physician's partner, in his presence, was also held to be privileged. In the case of Green v. Nebagamain, 113 Wis. 508, 89 N.W. 520, where a physician requested by another physician to accompany him upon his examination of a patient, and did so, the examination being made by the latter physician in the presence of former, who took no part in it, it was held that, having been called in by the attending physician, he was thereby rendered pro hac vice an attending physician, and hence precluded from disclosing any information thus acquired, against the objection of the patient. Other cases bearing on the question may be found in the briefs of the respective counsel to this suit, and in the case note to 16 L.R.A. (N.S.) 886.

It is true that Doctor Smith did not visit the insured for the purpose of personally treating him, but he did so in his capacity as a physician, at the request of Doctor Brown, to assist him in diagnosing the case. He...