Provident Life & Accident Ins. Co. v. Chapman

• Citation: 118 So. 437,152 Miss. 747
• Decision Date: 22 October 1928
• Docket Number: 27104
• Parties: PROVIDENT LIFE & ACCIDENT INS. CO. v. CHAPMAN. [*]
• Court: United States State Supreme Court of Mississippi

118 So. 437

152 Miss. 747

PROVIDENT LIFE & ACCIDENT INS. CO. v. CHAPMAN. ^[*]

No. 27104

Supreme Court of Mississippi

October 22, 1928

Division B

Suggestion of Error Overruled Dec. 3, 1928.

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE Judge.

Suit by Sandy Chapman against the Provident Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

C. M. Wright, for appellant.

The pleadings do not make an issue of fraud. The only allegation of fraud contained therein is that the defendant surreptitiously and clandestinely took the said policy without the consent and knowledge of the plaintiff, and refused to return the same to the plaintiff though often requested so to do. Whether the policy was taken or not by the defendant, the cashing of the draft was a full release, and the contract or release was concluded thereby, and none of the plaintiff's witnesses, including plaintiff himself, claim to have missed the policy until after the draft was cashed and the money received by the plaintiff. There is no allegation in plaintiff's reply to defendant's notice that any fraudulent or false representation was made to the plaintiff by defendant's agent, and there is no allegation that defendant's agent knew plaintiff was blind. A pleading is taken most strongly against the pleader. Nestor v. Davis, 100 Miss. 199; Odom v. G. & S. I. R. R. Co., 101 Miss. 642; I. C. Railroad Co. v. Middleton, 109 Miss. 199; Y. & M. V. R. R. Co. v. Craig, 118 Miss. 299.

There is no reason apparent why the prohibition of the statute should apply to a specialist who treats eyes. No case has been found so holding, but in People v. DeFrance, 104 Mich. 563, it is held that a dentist does not practice medicine and surgery within the meaning of the statute prohibiting the disclosure of the information acquired in such practice so as to exclude such testimony concerning false teeth furnished by him to a person whose identity is in question. It would seem that the same rule applies to a specialist who treats the eyes, as shown by the testimony in this case.

Examinations for the purpose of furnishing information to third persons do not come within the reason of the rule laid down in the statute. Seale's examinations, and Arnold's last examination, were for the purpose of furnishing information obtained by the examination to plaintiff's employer. These examinations were not for the purpose of treating or advice contemplated by the statute. The precise question has not been before this court, but looking to the terms of the statute, it does not appear to come within the terms. The uniform rule laid down by all the courts is that the information must be such as is necessary for a treatment, in order that the privilege may be claimed. See 28 R. C. L. 526, sec. 126, and the authorities there cited. The inquiries of plaintiff as to when the doctor told him he would be able to go back to work was material information on the issues involved in this cause, but this information was not necessary for the treatment. 40 Cyc. 2385.

But whatever may be said as to the other doctors, Dr. Mosby sustained no professional relationship to plaintiff. Dr. Touchstone told Dr. Mosby he had a peculiar case, and asked him to look at it. Dr. Mosby did make an examination; he did not undertake to treat, advise, or consult with Touchstone. Plaintiff nowhere says that Mosby had any confidential relationship to him. In Henry v. N.Y. L. E. & W. R. R. Co., 10 N.Y.S. 508, where there was nothing to show that a physician was requested to treat, prescribe, or advise, but merely that he made an examination at the request of the attending physician to ascertain the trouble, there was held to be no privilege.

In the Mississippi case of Estes v. McGehee, 133 Miss. 174, the court held that the physicians Privilege Statute does not preclude a person from testifying a nonexpert witness to facts and circumstances based upon relations and conversations with the patient and derived solely from business and social relations, disconnected and segregated from the relation of physician and surgeon. In this case the witness had treated the patient professionally, and had made observations of him socially and in business, and testified as to information received of the patient other than professionally. See, Dabbs v. Richardson, 137 Miss. 807.

Fraud is not established by testimony raising a mere suspicion. Willoughby v. Pope, 101 Miss. 808. Fraud is never presumed. It must be directly and specifically charged and clearly proven. Dunlap v. Fox, 2 So. 169; Parkhurst v. McGraw, 24 Miss. 135; Carter v. Eastman-Gardiner Co., 95. Miss. 651; Hall v. Thompson, 1 S. & M. 473; Cooperative Oil Co. v. Greenwood Agency, 148 Miss. 537; A. & V. R. R. Co. v. Turnbull, 71 Miss. 1029; A. & V. R. R. Co. v. Kropp, 129 Misss. 616; Continental Jewelry Co. v. Joseph, 140 Miss. 585; Gunter v. Henderson-Molpus Co., 149 Miss. 603, 115 So. 720; Vincent v. Corbitt, 94 Miss. 46.

Martin Miller, for appellee.

Under the facts of this case the case of U. S. F. & G. Co. v. Hood, 124 Miss. 548, 87 So. 115, is conclusive. See Sullivan v. Modern Brotherhood of America, 133 N.W. 486. Appellant's counsel cites Dunlap v. Fox, 2 So. 170; Parkhurst v. McGraw, 24 Miss. 137; Hall v. Thompson, 1 Smeades & Marshall, 472; R. R. Co. v. Turnbull, 71 Miss. 1036; Vincent v. Corbett, 94 Miss. 46; Carter v. Eastman-Gardiner Co., 95 Miss. 651; Willowby v. Pope, 101 Miss. 808; Continental Jewelry Co. v. Joseph, 105 So. 639; A. & V. R. R. Co. v. Kropp, 92 So. 692. We have no quarrel with any of these authorities. We admit that they are ail sound law and the trial court followed these authorities as is shown by instruction No. 6 granted appellant. We are quite willing to rest our case as to this point on appellant's own authorities.

Appellant complains of the court's refusal to permit various doctors who had examined the appellee to testify over the objection of the appellee. Practically every objection raised by appellant in these assignments of error have repeatedly been decided adversely against counsel's contention by this court. Y. & M. V. R. R. Co. v. Messine, 109 Miss. 143, 67 So. 963; I. C. R. R. Co. v. Messini, 111 Miss. 72 So. 779; Newton Oil Co. v. Spencer, 116 Miss. 561, 77 So. 604; Davis v. Elzey, 126 Miss. 789, 88 So. 630; McCaw v. Turner, 88 So. 705; Watkins v. Watkins, 106 So. 758.

In the U. S. F. & G. Co. v. Hood, 124 Miss. 548, 87 So. 115, this court went on record as saying that the evidence of a physician was not to be received before the court, and it is error for the court to proceed upon the idea that the judge and public may hear the statement of the physician in such case though it be excluded from the jury. Every contention raised by appellant on the question of liability, on the question of the privilege communication, on the question of the failure of the court to require appellee to submit to an examination by physicians after appellee had rested his case was decided adversely against appellant in the Hood case.

It seems to be the universal rule of law that a contract induced by misrepresentation is not held to be ratified until the ratifying party has a true knowledge of the facts. Southern Loan & Trust Co. v. Gissendanner, 58 So. 734. See 6 R. C. L. 933; 4 R. C. L. 514, par. 46.

OPINION

ETHRIDGE, P. J.

The appellee, plaintiff in the court below, brought suit on an insurance policy issued by the appellant, defendant in the court below. The policy provided for indemnity for disability because of personal bodily injury suffered during the life of the policy through external, violent, and accidental means, and for the recovery of a specific indemnity for the loss of the sight of one eye, or the loss of the sight of both eyes. The policy provided for a monthly accident indemnity of eighty dollars because of disability resulting from such personal bodily injury, the monthly indemnity to cease upon the happening of one of the specific losses named in the policy.

The principal sum of such policy was one thousand dollars, and the specific indemnity covering the loss of one eye because of such personal bodily injury is one-half the principal sum, and that covering the loss of both eyes is double the principal sum.

The declaration alleged the contract of insurance; that it was in force on the 9th day of October, 1926, because the plaintiff on that date got a hot cinder in one eye, causing inflammation of that eye, and, through sympathy, inflammation of the other eye, thereby incapacitating him as a locomotive fireman, and finally resulting in the total loss of the sight of both eyes within the one-hundred-and twenty-day limit stipulated in the policy.

The defendant pleaded the general issue, and gave notice thereunder, to the effect that the policy provides for indemnity for the loss of plaintiff's eyes only when the said loss is irrecoverable, and only when the said loss results solely from bodily injuries sustained through external, violent, and accidental means, and only when the loss results within the one hundred and twenty days of the happening of such injury; that plaintiff sustained no personal injury or injuries resulting solely from external, violent, and accidental means, within one hundred and twenty days from the loss of his eyesight, and that the said loss did not result from an injury sustained by him within one hundred and twenty days of such loss; that plaintiff did not lose his eyesight because of any personal bodily injury suffered by him, but that he lost his eyesight from disease, or from natural causes, and that he had been going blind for a long time; that on November 19, 1926, the defendant compromised and settled all claims...