Novak v. Chicago Fraternal Life Ass'n

• Citation: 16 P.2d 507,136 Kan. 609
• Decision Date: 10 December 1932
• Docket Number: 31030.
• Parties: NOVAK et al. v. CHICAGO FRATERNAL LIFE ASS'N.
• Court: United States State Supreme Court of Kansas

16 P.2d 507

136 Kan. 609

NOVAK et al. v. CHICAGO FRATERNAL LIFE ASS'N.

No. 31030.

Supreme Court of Kansas

December 10, 1932

Syllabus by the Court.

Statement in insurance application naming doctor who treated applicant at last illness held not waiver of objection to doctor's testimony on ground communications were privileged (Rev. St 1923, 60-2805).

Beneficiary under life policy held entitled to object to admissibility of doctor's testimony relating to insured's communications during lifetime (Rev. St. 1923, 60-2805).

1. Where an applicant for insurance answered questions in the application blank, among which was one naming the doctor who had treated him at his last illness before the application in a suit on the policy this will not be held to be a waiver of the right of the beneficiary to object to the testimony of the doctor as to a communication by the insured on the ground that it was a privileged communication.

2. A beneficiary in a life insurance policy has the right to object to the admissibility of testimony of a doctor as to a communication made to the doctor by the insured in his lifetime on the ground that it was a confidential communication.

Appeal from District Court, Wyandotte County, Third Division William H. McCamish, Judge.

Action by William Novak and another against the Chicago Fraternal Life Association, a corporation. Judgment for the plaintiffs and the defendant appeals.

George R. Allen, of Topeka, and Arthur J. Stanley and Arthur J. Stanley, Jr., both of Kansas City, for appellant.

H. S. Roberts and Jos. A. Lynch, both of Kansas City for appellees.

SMITH J.

This is an action on a life insurance policy. Judgment was for plaintiffs. Defendant appeals.

Mike Novak at the time of his death was a member of appellant association. William and Joseph Novak were beneficiaries. This action is brought to collect on the policy.

Mike Novak stated in his application for insurance that he was born October 8, 1872; that he had never had disease of the heart, bladder, liver, diabetes, or palpitation of the heart, but had had only "influenza 6 weeks, March, 1928. Complete recovery."

On the day the case was called for trial appellant asked for a continuance and offered an affidavit of Dr. T. F. Barney in part as follows: "That he had known Mike Novak, the insured, and treated him in March of 1928, which was prior to the date the application for insurance in this case was made, and that at said time the said Mike Novak was suffering from heart trouble and liver trouble and that his treatment did not relieve or cure the said Mike Novak of his trouble."

The defense pleaded was that deceased by his answer to the questions in his application was guilty of a breach of warranty. The continuance was denied after a stipulation that the affidavit might be read as the deposition of the doctor, if held by the court to be competent. When the affidavit was offered, objection to it was sustained on the ground that it was a privileged communication. Appellant argues that the privilege was waived when insured answered certain questions in the application. These questions were as follows:

"28. How long since you were under the care of a physician, and for what cause? Dr. Barney, K. C. Kan., for influenza, March, 1928.

"29. Name and address of the doctor who treated you last. Dr. Barney, K. C., Kans." (Ab. 30-31)

It is also argued that the question of privilege cannot be raised by beneficiaries, but only by the person by whom the communication was made, his legal representative or assignee.

The statute in this state that makes the testimony of a physician incompetent under certain circumstances is R. S. 60--2805. It reads as follows: "The following persons shall be incompetent to testify: ***

"Sixth. A physician or Surgeon concerning any communication made to him by his patient with reference to any physical or supposed physical disease, defect, or injury, or the time, manner or circumstances under which the ailment was incurred, or concerning any knowledge obtained by a personal examination of any such patient, without the consent of the patient.

"But if a person without objection on his part testifies concerning any such communication, the attorney, clergyman, priest or physician communicated with may also be required to testify on the same subject as though consent had been given within the meaning of the last three subdivisions."

This provision reserves the privilege to the patient. It is for his benefit. The theory is that there must be such a rule in order that patients will consult freely with their physicians and secure the best treatment. One must not withhold facts from his doctor, for his physical welfare, from his lawyer, for his material welfare, or from his spiritual adviser, for his spiritual welfare. This statute was enacted to make complete disclosures to a physician easy. The privilege may, however, be waived. As to that, appellant relies on what was said in Metropolitan Life Insurance Co. v. Brubaker, 78 Kan. 146, 96 P. 62, 65, 18 L.R.A. (N. S.) 362, 130 Am.St.Rep. 356, 16 Ann.Cas. 267. That case held that a waiver of the privilege signed by the insured when he applied for his policy was good. the court said: "This privilege, like many others, even those protected by constitutional guaranty, may be waived. By statute, if the party himself testify, the privilege is waived. If he publish the confidential matter to the world, the privilege is waived. See In re Elliott, 73 Kan. 151, 84 P. 750; In re Burnette, 73 Kan. 609, 85 P. 575. And it would deprive him of a valuable right if he were prohibited from making a waiver by contract in advance of litigation."

What appellant is...