Oklahoma Protective Ass'n v. Montgomery
| Decision Date | 11 October 1932 |
| Docket Number | 21193. |
| Citation | 16 P.2d 135,160 Okla. 135,1932 OK 673 |
| Parties | OKLAHOMA PROTECTIVE ASS'N v. MONTGOMERY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 22, 1932.
Syllabus by the Court.
The application for insurance, on which the certificate of insurance was issued, signed by the insured, contained a stipulation, as follows: The court refused to allow the testimony of attending physicians as to communications made by the applicant to them concerning disease, from which the applicant suffered, and their knowledge of disease of this applicant gained by examination. Held, reversible error was committed.
Appeal from District Court, Jefferson County; M. W. Pugh, Judge.
Action by Jodie Montgomery against the Oklahoma Protective Association. Judgment for the plaintiff, and the defendant appeals.
Reversed with directions.
Bond Hatcher & Bond, of Chickasha, for plaintiff in error.
Guy Green, of Waurika, for defendant in error.
This action began in the district court of Jefferson county on the 26th of January, 1929. The allegation of the petition is, that the Oklahoma Protective Association is a corporation, organized under the laws of the state of Oklahoma, and that on the 21st of March, 1928, it issued a certificate of membership to Allen F. Montgomery, which is set out as an exhibit to the petition.
The certificate set forth that Allen F. Montgomery was a member of the association, "with all the rights, privileges and benefits of the same, subject to the provisions and conditions of the By-Laws together with all changes and amendments thereto that may be enacted in the future, which constitute a part of this contract in the same manner and extent as if printed in the body of this Certificate." The association agreed in the certificate, upon satisfactory proof of the death of a member, if the certificate was in full force and effect, within 90 days from acceptance of proof of death, to pay Jodie Montgomery, his wife, the sum of $1 for each membership certificate in force in the association at the time of death, with a proviso that it should not exceed $1,000, plus the unused portion of the reserve fund to the credit of this certificate. The date of the certificate was March 21, 1928.
An answer was filed setting up that, in the application for the certificate, which was made a part of the certificate, there were false statements and warranties contained, and an extract from the application is set out, as follows: "It is understood that all statements and answers as written or printed in this application are full, complete and true, whether written by my own hand or not; and I agree that their truth is a material inducement to and the basis of any insurance issued hereon, and I hereby authorize any physician or other person who has attended me or may hereafter attend me to disclose to said insurance company any information thus acquired."
There was a statement that the certificate contains the following clause: "Witnesseth: That in consideration of the statements and warranties contained in the application for this certificate, which are made a part hereof * * * The Oklahoma Protective Association does issue this membership certificate. * * *"
There were further statements in the answer of the falsity of the statements made as to the condition of health, and as to never having had lung trouble or surgical operation, and no person in the immediate house had suffered from tuberculosis in two years, and that the applicant had not been confined to the house by illness, and statements of these answers being false and being material and inducements to the issuance of the policy, with an averment that for three years applicant had been suffering with tuberculosis, and that he had a high pulse rate and was running temperature, and misrepresentation as to who his family physician was, and an averment that two years before the application he had been examined for tuberculosis, and knew that he was afflicted with it, and he died from it, and there was a statement of having relied upon the statements as being true, and that the certificate, by reason of falseness of statement, was null and void. The application for membership is set out in full. A general denial was filed for reply.
The cause came on for trial, and a motion for continuance was made on account of the absence of the evidence of C. M. Maupin, a physician living at Waurika, and it was stated that the evidence expected to be established by him was that he was a medical attendant of the deceased Montgomery, and sent him to Dr. Moorman, a tuberculosis expert in Oklahoma City, in the year 1927, owing to suffering at that time with tuberculosis, and also that on May 8, 1928, that the risk was an habitual drunkard. The motion for continuance was overruled, and, at the opening of the trial of the case, the plaintiff objected to any statement being made, in the presence of the jury, of a defense involving the testimony of any physician or confidential communication or privileged communication obtained by the physician from the risk, A. F. Montgomery, or to disclose any statement made by said Montgomery as between patient and physician, as well as the offer of any testimony by any physician that involves confidential or professional information received by him or heard on such examination or consultation as the case may be. The court sustained the motion, and the defendant excepted.
The beneficiary was permitted to testify to the death of the deceased, and when, and of her making out a return of death. She testified that he was sick 13 weeks before he died, and he had been in the Clinton Sanitarium, but objection was made to her being asked, on cross-examination, as to who advised her to take him there. With this testimony the plaintiff rested, and demurrer was interposed and overruled.
The defendant introduced portions of the by-laws as to the application for membership and what constituted the contract making the application and by-laws part of the contract, and the sections on misrepresentation, and the effect of misrepresentation to nullify the certificate, and a by-law that agents were not empowered to do anything more than receive, recommend, and forward to the association applications, from the localities to which they were appointed. There was a section providing that the membership certificates should be incontestable, in the absence of fraud, after one year from the date of issuance, provided dues were kept up. Various reports of attending physicians were offered and rejected, some being exhibits to depositions taken by plaintiff. The deposition of T. C....
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