N.Y. Life Ins. Co. v. Newman, 12.

• Decision Date: 14 May 1945
• Docket Number: No. 12.,12.
• Citation: 18 N.W.2d 859,311 Mich. 368
• Parties: NEW YORK LIFE INS. CO. v. NEWMAN.
• Court: Michigan Supreme Court

311 Mich. 368

18 N.W.2d 859

NEW YORK LIFE INS. CO.

v.NEWMAN.

No. 12.

Supreme Court of Michigan.

May 14, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Adolph F. Marschner, judge.

Suit by the New York Life Insurance Company against Hattie E. Newman to cancel a life policy and to restrain and action at law commenced by defendant. From a decree of dismissal, plaintiff appeals.

Affirmed.

Before the Entire Bench, except BUTZEL, J.

Armstrong, Weadock, Essery & Helm, of Detroit (Richard G. Eubank, of Detroit, of counsel), for plaintiff and appellant.

Butzel, Levin & Winston, of Detroit (Chris M. Youngjohn, of Detroit, of counsel), for defendant and appellee.

SHARPE, Justice.

Plaintiff, New York Life Insurance Company, filed a bill in chancery to cancel a life insurance policy and to restrain an action at law commenced by defendant.

The record shows that on July 15, 1938, a policy of insurance was issued on the life of Meyer Newman in the sum of $3000 payable to Hattie E. Newman, his wife and defendant herein; that on July 15, 1940, the policy lapsed by reason of default in payment of premium; and that on August 20, 1940, the insured made written application to plaintiff insurance company for reinstatement of the policy. In the application for reinstatement, the following questions were asked and answers given.

‘1. Are you now, to the best of your knowledge and belief, in the same condition of health as you were when this policy was issued? (If not, give details.) Ans. Yes.

‘2. Within the past two years have you had any illnesses, diseases or bodily injuries or have you consulted, or been examined or treated by any physicians or practitioners? (If so, give full details, including nature, date, and duration of each illness, disease or injury, the name of each physician or practitioner, and the dates of and reasons for consultations, examination or treatment.) Ans. No.’

The insured also stated:

‘I hereby certify that the foregoing answers are full, complete and true, and agree that the Company believing them to be true shall rely and act thereon.’

The policy was reinstated on August 23, 1940. On May 14, 1941, Meyer Newman had his first heart attack and was confined to a hospital for about a month. He died August 24, 1941. Proofs of death were submitted to the insurance company by the beneficiary and additional information was sought by the company. Mrs. Newman, the beneficiary, authorized Dr. Vogel and Providence Hospital to furnish this additional information, which indicated that Meyer Newman had had heart trouble for some time; and that he had been examined by Dr. Vogel contrary to Mr. Newman's representation in his answer to question number two of the reinstatement application.

Upon receiving this information the insurance company rescinded the policy. Defendant, Hattie Newman, brought an action at law in the circuit court of Wayne county, while the present suit in equity is for the purpose of enjoining the action at law and for a decree cancelling the policy.

During the trial, defendant claimed privilege and refused to allow the doctor or hospital librarian to testify concerning the information obtained incident to the doctor's professional relation with the insured. Defendant produced a number of witnesses who testified that for several years prior to May 1941 deceased looked fine, worked well and acted normally.

The trial court filed a written opinion in which he said:

‘The undisputed and credible evidence offered by the defendant discloses that prior to the visit to Dr. Vogel and subsequently the insured evidenced no signs of illness; that he continued his business and creational (recreational) activities during the time that the policy was in force and up to the time of his last illness; that he followed a strenuous and arduous business life which disclosed a handling of merchandise in the store that he supervised; that in his home he shoveled coal, ashes, and snow when the occasion required and went up and down the stairs in his home daily in performance of manual duties; that he equally engaged in arduous activities for charitable purposes and played golf frequently. There was apparently no change in his physical appearance nor anything in his conduct about his daily life which would cause a lay person or the defendant, his widow, who maintained close observation, to doubt but that he considered himself well, strong, and healthy and conducted himself accordingly; nor does the proof indicate in the slightest degree that he knew or suspected that he might be suffering from some infirmity. * * *

‘The testimony in the case at bar does not disclose any condition or ailment of the insured of such a nature as to have a material bearing upon the truth or falsity of his answer to the second question, and as stated in the Palen case (Polish Roman Catholic Union of America v. Palen, 302 Mich. 557 ):

“* * * that the insured made false statements in denying that he had any periodic health examinations and in stating that he was ‘now in good nealth’ when the application was signed. The admissible evidence tends to indicate the truthfulness, rather than falsity, of these statements. The dearth of any proof of serous illness in the case at bar readily distinguishes this case from the facts in Wohlfeil v. Bankers Life Co., 296 Mich. [310] at page 311 .' * * *

‘It is fair to conclude from the evidence here adduced that the deceased went to Dr. Vogel for a routine physical checkup, as stated by the defendant, and equally by the doctor himself. The question submitted should be answered in the negative.’

Subsequently, an order was entered dismissing plaintiff's bill of complaint. Plaintiff appeals and urges that the trial court committed error in holding that no adverse inference may be drawn from the fact that the beneficiary supressed material evidence within her control.

Section 14216, 3 Comp.Laws 1929 (Stat.Ann. § 27.911), provides:

‘No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his 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: * * *.’

The rule of evidence in the above statute did not exist at common law. Campau v. North, 39 Mich. 606, 33 Am.Rep. 433. The privilege is personal to the client or patient and may be waived by him, or, after his death, by...