TRAVELERS'INS. CO. OF HARTFORD v. Bergeron

• Citation: 25 F.2d 680
• Decision Date: 31 March 1928
• Docket Number: No. 7969.,7969.
• Parties: TRAVELERS' INS. CO. OF HARTFORD, CONN., v. BERGERON.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

25 F.2d 680 (1928)

TRAVELERS' INS. CO. OF HARTFORD, CONN., v. BERGERON.^*

No. 7969.

Circuit Court of Appeals, Eighth Circuit.

March 31, 1928.

Vail E. Purdy, of Sioux City, Iowa (J. C. Gleysteen and Snyder, Gleysteen, Purdy & Harper, all of Sioux City, Iowa, on the brief), for plaintiff in error.

David F. Loepp, of Sioux City, Iowa (Clay H. Jensen, of Sioux City, Iowa, on the brief), for defendant in error.

Before WALTER H. SANBORN and LEWIS, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

Freda Bergeron (hereinafter called plaintiff) brought this action against the Travelers' Insurance Company of Hartford, Conn., to recover upon a policy of accident insurance. This policy, among other things, provided that the insurance company would pay to the plaintiff, as beneficiary, the sum of $7,500 in the event the death of Lisle Bergeron, the insured, should be "effected directly and independently of all other causes, through external, violent, and accidental means." The pleadings presented the issue of whether the death of the insured resulted from accidental cause within the meaning of the policy.

Lisle Bergeron, the insured, for a period of six or seven years prior to April 7, 1925, had been accustomed to the moderate use of intoxicating liquor, commonly called gin, which he concocted himself. On April 7, 1925, after making some gin in his accustomed way, the insured drank about six ounces of such gin. A short time thereafter he became ill, collapsed, and passed into a state of coma. He remained unconscious until April 9th, when death ensued. The total alcoholic content of such gin was 45.60 per cent. Of this 5.23 per cent. was wood alcohol, and the balance grain alcohol. When the insured became stricken, Dr. P. E. Keefe, a duly licensed and regularly practicing physician and surgeon, was called to attend him. Dr. Keefe had the insured removed to St. Joseph's Hospital in Sioux City, Iowa, and there continued to treat the insured until his death.

At the trial, Dr. Keefe was called as a witness for the plaintiff. In answer to a hypothetical question, which recited the foregoing facts and other facts material to the inquiry, Dr. Keefe gave his opinion that the wood alcohol contained in the drink of gin was sufficient, independently of all other causes, to cause the death of the insured, and that the death of the insured was caused by "acute toxic poisoning, apparently wood alcohol."

Dr. A. C. Starry, a duly licensed and practicing physician, was called to testify in behalf of the defendant. He testified that he was the pathologist at St. Joseph's Hospital at Sioux City, Iowa, and had under his charge and supervision the clinical laboratory of the hospital in which clinical laboratory work was done for the patients at the hospital. Plaintiff showed that Dr. Keefe caused samples of the urine, of the blood, and of the spinal fluid of the insured, while the latter was a patient in the hospital, to be sent to the clinical laboratory for analysis, and that an analysis of each of such samples was made in the clinical laboratory under the supervision and direction of Dr. Starry.

Dr. Starry further testified that he did not see the insured during his last illness; that he made no examination of him to determine the cause of such illness prior to death, and had nothing to do with the treatment administered; that after the death of the insured, at the request of Dr. Keefe, he made an autopsy on the body of Lisle Bergeron; and that the purpose of such autopsy was to determine the cause of death.

The defendant then offered to show by the witness Dr. Starry facts discovered and ascertained by him from such post mortem examination. The plaintiff objected to this evidence upon the ground that it was a disclosure of a privileged communication between patient and physician, and inadmissible under the provisions of section 11263 of the 1924 Code of Iowa. The learned trial judge sustained this objection.

The defendant then made the following offer of proof:

"Mr. Purdy: The defendant now offers to prove, by the testimony of Dr. A. C. Starry, that in making the autopsy of the body of Lisle Bergeron he discovered that there was in the brain of said Lisle Bergeron, attached to the surface of the left thalamus and projecting into the right ventricle, a small tumor mass about the size of a small cherry, and that there was stretched over this tumor across the upper surface thereof a small blood vessel, the wall of which, adjacent to the tumor, had become atrophied and weakened and made thinner, and that this blood vessel had ruptured at the point where it had so become weakened, and that as a result of said rupture a hemorrhage had occurred into the ventricles of the brain, and that as a result of said rupture there was — there were clots of blood in the left lateral ventricle, and the right lateral ventricle was filled with clotted blood, and the third and fourth ventricles were filled with blood; that the meninges contained a large amount of blood, and a large amount of clotted blood filled arachnoid spaces; that the condition so found resulted from said rupture, and was such as to be necessarily fatal; that no other cause for the death of said Lisle Bergeron was discovered in said post mortem examination; that the weakening and thinning out of the wall of said blood vessel adjacent to said tumor was detected by a microscopic examination of said blood vessel; that the tumor discovered was of a kind with which the growth is progressive, and was such that in time it must have necessarily resulted in the rupture of said blood vessel sooner or later; that the condition so discovered was discovered solely as a result of performing an autopsy in the usual manner, and without any information or knowledge on the part of the witness at the time of performing said autopsy of the prior condition of Mr. Bergeron before his death, and that the condition so discovered was such that in the opinion of the witness a fatal result from said condition would in his opinion have come about from said condition described no matter what other information he might have had relative to Lisle Bergeron during his lifetime, or during his last illness, and that in view of the condition so found in said autopsy death could not have resulted from any other cause than the tumor, the stretching of the blood vessel and weakening of its walls by the tumor and the rupture and hemorrhage resulting therefrom, and that if the said Lisle Bergeron prior to his death had been suffering from any other affliction or disease which might have caused his death, but of which no evidence was discovered on the autopsy, it is nevertheless in the opinion of the witness impossible for any doctor to say in view of the findings made on the autopsy that the conditions there discovered were not a part and a vital part of any of the cause or causes resulting in his death."

Like objection was made to the offer of proof. The court sustained this objection and the defendant duly excepted thereto.

The trial resulted in a verdict for the plaintiff for the sum of $8,362.50 and the costs of the action. Judgment was entered on the verdict, and this is a writ of error therefrom.

The insurance company assigns as error the ruling of the trial court rejecting the offer of proof above set out.

Section 11263, Code of Iowa 1924, provides:

"11263. Communications in Professional Confidence. No practicing attorney, counselor, physician, surgeon, or the stenographer or confidential clerk of any such person, who obtains such information by reason of his employment, minister of the gospel or priest of any denomination shall be allowed, in giving testimony, to disclose any confidential communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline. Such prohibition shall not apply to cases where the party in whose favor the same is made waives the rights conferred."

The privilege as to communications between patient and physician is purely statutory, there being no such privilege at common law. 5 Wigmore on Evidence (2d Ed.) § 2380. Statutes establishing such privilege have been adopted in many states. 5...