Prudential Ins. Co. of Am. v. Kozlowski

• Decision Date: 07 December 1937
• Citation: 276 N.W. 300,226 Wis. 641
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. KOZLOWSKI.
• Court: Wisconsin Supreme Court

226 Wis. 641

276 N.W. 300

PRUDENTIAL INS. CO. OF AMERICA

v.KOZLOWSKI.

Supreme Court of Wisconsin.

Dec. 7, 1937.

Appeal from a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge.

Reversed.

Action by Prudential Insurance Company against Alex L. Kozlowski for cancellation of a life insurance policy, commenced May 17, 1934. The defendant counterclaimed for recovery under the policy. Judgment was entered June 18, 1937, dismissing the complaint and awarding recovery on the policy. From this judgment the plaintiff appeals.Lines, Spooner & Quarles, of Milwaukee (L. S. Clemons, of Milwaukee, of counsel), for appellant.

Eugene J. Sullivan, of Milwaukee, for respondent.

FOWLER, Justice.

An action was brought by the plaintiff insurance company to cancel a life insurance policy issued by it on the life of Albert E. Kozlowski, payable to the defendant, on the ground that the policy never became effective because the insured “was not in sound health” at the date thereof, and under the terms of the policy the policy was not to become effective if the insured was not then in sound health. The insured died a month and three days after the policy was issued and about fifteen months after his admission to the hospital below mentioned. The policy had not become incontestable by lapse of time. The defendant denied that at the time the policy was issued the insured was not in sound health, and counterclaimed for recovery on the policy. The plaintiff's complaint was dismissed and judgment entered on the counterclaim.

The case was tried to the court without a jury. The ground of the judgment was that there was no evidence that the insured was not in sound health when the policy was issued because all the evidence as to his unsound health was given by or based upon the testimony of witnesses who were incompetent to testify under section 325.21, Stats., disqualifying a physician from disclosing any “information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient.”

On the trial of the case, over the objection of the defendant, the court received in evidence the testimony of a nurse in the employ of the Milwaukee County Hospital, and a record made by her upon admission of the insured to the hospital on March 26, 1932, and during his treatment therein which was used by the physician who treated him, and the testimony of an X-ray operator in the employ of the hospital and an X-ray plate made by him at the direction of the physician who was treating the insured. Without that testimony and that record and that plate there was no evidence of unsound health at the time the policy was issued. Upon consideration of the case after its submission the court rejected that testimony and that record and plate as not receivable under the statute. Upon the rejected evidence the conclusion is unescapable that an aneurysm of the aorta of the insured existed at the time the X-ray plate was taken; that this condition existed at the time the policy was issued and would continue to exist until his death; and that his death from this condition would ordinarily result in from four to six years. The insured was therefore not in sound health when the policy was issued, the policy by its terms never became effective, and judgment upon the complaint should have been entered if the excluded evidence was receivable.

[1] Upon the rulings of some courts under like statutes the trial judge's rejection of the evidence was correct, but under the rulings of other courts under like statutes it was receivable. The rejected evidence is not within the reason of the rule of the statute, and nurses and X-ray operators are not within its letter as only physicians and surgeons are mentioned therein. As the rejected evidence does not fall either within the statute's reason or its letter, we are of opinion that it was receivable.

[2][3] The reason of the rule of the statute, as far as it has any, is that patientsmay be afflicted with diseases or have vicious or uncleanly habits necessary for a physician to know in order to treat them properly, disclosure of which would subject them to humiliation, shame, or disgrace, and which they might refrain from disclosing to a physician if the physician could be compelled to disclose them on the witness stand. Boyle v. Northwestern Mutual Relief Ass'n, 95 Wis. 312, 70 N.W. 351. If the disclosures to the physician be such as not to subject the patient to shame or affect his reputation or social standing, there is no reason why a physician should not disclose them and sound reason why in the interest of truth and justice he should be compelled to disclose them. The physician's exemption from disclosure should in reason be limited to such disclosures as would injure the patient's feelings or reputation. The statute too often works, as stated by Mr. Justice Owen in his dissenting opinion in Maine v. Maryland Casualty Co., 172 Wis. 350, 359, 178 N.W. 749, 752, 15 A.L.R. 1536, to cheat rather than to promote justice and to suppress rather than reveal truth. The...