Provident Life & Accident Ins. Co. v. Jemison

• Decision Date: 21 January 1929
• Docket Number: 27524
• Citation: 153 Miss. 53,120 So. 180
• Parties: PROVIDENT LIFE & ACCIDENT INS. CO. v. JEMISON. [*]
• Court: Mississippi Supreme Court

120 So. 180

153 Miss. 53

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

No. 27524

Supreme Court of Mississippi

January 21, 1929

Division B

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

Action by Jack Jemison against the Provident Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals, and plaintiff cross-appeals. Affirmed on direct appeal, and reversed and rendered on cross-appeal.

Affirmed on direct appeal. Reversed and judgment rendered on cross-appeal.

T. J. Wills, for appellant.

Appellee was suffering from the disease before noon of the 15th day after the issuance of the policy. Under the plain terms of the contract made and entered into by the plaintiff with the defendant company he was not entitled to recover.

It was error for the court to exclude the testimony of Dr. McLeod. Communications between a physician or surgeon and a patient are privileged communication, but it is a privilege that the patient can always waive. It was a part of the contract entered into that if a claim was made under the policy it must be supported by the written report of the attending physician or surgeon; and this report discloses the condition and probable duration of the disease of the plaintiff. This report required from the physician and surgeon under the conditions in which it is made privileged was the condition precedent to his right to recover. This was a waiver of the privilege. It was a part of the contract; and the exclusion of this evidence was error. Woodmen of the World v. Farmer, 116 Miss. 626, 77 So. 655.

Haralson & Hall, for appellee.

The difference between the medical cause and the disease itself is obvious. Such difference is clearly explained in Cohen v. North American Life & Casualty Co. (Minn.), 185 N.W. 939. A counting of the days will demonstrate that fifteen days had elapsed from the date of the policy, June 18, to July 3rd. True it is that the policy as a whole took effect at noon, June 18th. However, this provision regarding the noon hour had to do with the provision as to accidental death, etc. The sick benefit was to take effect after the policy had been in continuous force fifteen days. It says nothing about half days. Consequently the first day of the fifteen-day period expired at 12 o'clock midnight, June 18th. Counting the days from that time it will be found that fifteen days had expired at midnight July 2nd.

The appellant also complains about the refusal of the court to let Dr. McLeod testify. We say that the trial court was correct and in fact very liberal to the appellant in this respect. Contrary to the assertion of the appellant, there was nothing in the policy itself which waived the privileged communication statute. The policy simply provided for a written report of the attending physician or surgeon, to accompany the claim blanks. The doctor's report to the claim blanks was filled out by Dr. Summers, and not by Dr. McLeod, the witness for the insurance company.

The burden of appellee's complaint is this: The appellee sued for seven hundred and twenty dollars. This the appellee (plaintiff below) proved. Not one word of testimony was introduced by the appellant insurance company to the contrary. But the verdict of the jury was only three hundred and sixty dollars. We therefore most earnestly solicit this court to enter judgment here in the full amount sued for to-wit, seven hundred and twenty dollars.

OPINION

ETHRIDGE, P.J.

J. This cause is appealed from the circuit court of Forrest county from a judgment for three hundred and sixty dollars in favor of Jemison against the appellant upon a policy of accident and sick benefit insurance. Paragraph 8, section (a), of the policy provides:

"The company will pay monthly sickness indemnity for the period not exceeding one year during which the insured shall be wholly and continuously disabled and prevented from performing any and every duty pertaining to any business or occupation by reason of sickness, and if such disability shall continue for more than one year, the company thereafter will pay one-fourth of said monthly sickness indemnity for so long as it shall continue; but no indemnity shall be payable under this part for any period during which the insured is not regularly treated by a licensed physician."

By another clause of the policy it is provided:

"This policy, except part VIII, takes effect at twelve o'clock noon of the date hereof, standard time, at the insured's residence, if the insured is in sound health and free from injury at that time, and part VIII takes effect fifteen days thereafter, in accordance with paragraph (2) of the insuring clause, if all premium due meanwhile has been paid as agreed. If not written on the monthly payment plan, the whole policy expires one year from its date, if not renewed or terminated sooner in accordance with its terms; if written on the monthly premium payment plan the whole policy shall be in force so long as the premiums are paid under the terms of the pay order therefor, unless cancelled by the insured or the company at the expiration of the policy year in accordance with the terms of said pay order."

The policy was dated on the 18th day of June, 1927, and on the 3d day of July, 1927, the appellant developed an illness in the nature of rheumatism, which he first felt about nine o'clock a. m....