Provident Life & Accident Ins. Co. v. Jemison

• Citation: 153 Miss. 60,120 So. 836
• Decision Date: 04 March 1929
• Docket Number: 27524
• Parties: PROVIDENT LIFE & ACCIDENT INS. CO. v. JEMISON. [*]
• Court: United States State Supreme Court of Mississippi

120 So. 836

153 Miss. 60

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

No. 27524

Supreme Court of Mississippi

March 4, 1929

Division B

Suggestion of Error Overruled March 4, 1929.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

In response to suggestion of error. Overruled.

For former opinion, see 120 So. 180.

Suggestion of error overruled.

T. J Wills, for appellant.

Haralson & Hall, for appellee.

OPINION

GRIFFITH, J.

Appellant urges with emphasis two grounds of supposed error in our former opinion in this case:

First, that we erred in sustaining the trial court in excluding the testimony of appellee's physician. In the present contract of insurance there is this provision: "If the Insured is disabled by 'such injury' or 'such sickness' for more than thirty days, he or his representatives shall, as a condition precedent to any liability of the company hereunder, furnish the company at its principal office in Chattanooga, Tennessee, every thirty days thereafter (or as near thereto as may be reasonably possible) with a report in writing from his attending physician or surgeon, fully stating the condition of the Insured and the probably duration of his disability." It is argued that this provision is a waiver of the statutory privilege against the introduction of a physician without the consent of the patient, and that our holding is contrary to that of the court in Sovereign Camp, Woodmen of the World v. Farmer, 116 Miss. 626, 77 So. 655. The provision in the policy in the latter case was as follows: "I further waive for myself and beneficiaries the privileges and benefits of any and all laws which are now in force or may hereafter be enacted in regard to disqualifying any physician from testifying concerning any information obtained by him in a professional capacity." A comparison of the two provisions is all the argument necessary, as we think, to show that the provision here involved does not come within that in the Farmer case.

Second, that we erred in granting judgment against appellant because, as appellant says, it is admitted in the record that the insured did not comply with the stipulation aforesaid to furnish the insurer every thirty days with the written reports therein required. It is suggested that the court must have overlooked this feature of the case, and also the consociated stipulation in the policy that "strict compliance on the part of the Insured and beneficiary with all the provisions of this Policy is a condition precedent to recovery hereunder, and a failure in this respect shall forfeit to the company all right to indemnity." The court did not overlook the matters mentioned, but candor compels us to confess that we did lose interest in it when we found in another part of the record the proof that the insured, well within the stipulated time, after discovering the outbreak of the sickness, sent the card furnished by the company for that purpose, advising the insurer of the said outbreak, and that...