Trull v. Modern Woodmen of America

• Decision Date: 14 May 1906
• Citation: 12 Idaho 318,85 P. 1081
• Parties: W. R. TRULL, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant
• Court: Idaho Supreme Court

85 P. 1081

12 Idaho 318

W. R. TRULL, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant

Supreme Court of Idaho

May 14, 1906

APPEAL-ORDER DENYING NEW TRIAL-TESTIMONY OF PHYSICIAN-PRIVILEGED COMMUNICATION-WAIVER OF PRIVILEGE-TIME OF WAIVER-CROSS-EXAMINATION OF EXPERTS.

1. Where an appeal is taken from an order denying a motion for a new trial at a period of more than sixty days after the order is made and entered, such appeal is ineffectual and will be dismissed on motion of the adverse party.

2. Where the appeal from the judgment was not taken within sixty days after the rendition of the judgment, and no valid appeal has been taken from the order denying a motion for a new trial, the appellate court is without authority or jurisdiction to examine the evidence for the purpose of ascertaining whether or not it is sufficient to support the verdict and judgment.

3. Where in an application for life insurance the applicant stipulates and agrees that he waives all provisions of law preventing a physician from testifying as to any information acquired by him while attending his patient or rendering him incompetent as a witness as provided in section 5958, Revised Statutes, such waiver is valid, and entitles the beneficiary named in the policy, as well as the insurer, in an action upon a policy issued on such application, to call and examine the physician who attended the insured during his last sickness and have him answer questions which, but for such waiver would be regarded as privileged communications that the witness could not disclose.

4. Since the statute, section 5958, subdivision 4, Revised Statutes, authorizes the patient to waive the privilege of secrecy imposed on his physician, and does not fix any specific time at which such waiver can or must be made, no reason is discovered why the waiver may not equally as well be made by contract and in advance of the relation of physician and patient arising as at the time of the trial.

5. As to whether or not the privilege of secrecy granted by statute is a personal privilege attaching only to the person of the patient, or can be waived by his heir or legal representative, quaere.

6. The courts will be liberal in allowing a broad range of inquiry on cross-examination, and this rule is especially and peculiarly applicable when it comes to the cross-examination of that class of witnesses commonly called experts.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for the County of Latah. Hon. Edgar C. Steele, Judge.

Action by W. R. Trull, the beneficiary named in a benefit certificate issued by the Modern Woodmen of America on the life of John B. Trull, to recover the sum of $ 2,000, the amount for which the certificate was issued. Verdict and judgment for the plaintiff, and defendant moved for a new trial. New trial denied and the defendant appealed from the judgment and order denying a new trial. Appeal from the order denying a new trial dismissed. Judgment affirmed.

Judgment affirmed, with costs in favor of respondent.

T. W Bartley and S. S. Denning, for Appellant.

The patient alone can waive the secrecy of the privileged communications, and when such patient is dead, the matter is forever closed. (In re Nelson's Estate, 132 Cal. 182, 64 P. 294; In re Redfield's Estate, 116 Cal. 637, 48 P. 794; Harrison v. Sutter St. Ry Co., 116 Cal. 156, 47 P. 1019; Life Ins. Co. v Trust Co., 112 U.S. 250, 28 L.Ed. 708, 5 S.Ct. 119; Grattan v. Ins. Co., 80 N.Y. 281, 36 Am. Rep. 617, 92 N.Y. 274, 44 Am. Rep. 372; Pearson v. People, 79 N.Y. 424, 35 Am. Rep. 524; Eddington v. Life Ins. Co., 67 N.Y. 185; Westover v. Life Ins. Co., 99 N.Y. 56, 52 Am. Rep. 1, 1 N.E. 104; Renihan v. Dennin, 103 N.Y. 573, 57 Am. Rep. 770, 9 N.E. 320; Loeder v. Whelpley, 111 N.Y. 239, 8 N.E. 874; Freel v. Market St. Ry. Co., 97 Cal. 40, 31 P. 730.)

A hypothetical question propounded to an expert witness must be based upon the facts proven or admitted in the case. ( Kelly v. Perrault, 5 Idaho 221, 48 P. 45.)

Forney & Moore, for Respondent.

Under subdivision 3, section 4807, Revised Statutes, the appeal from the order granting or refusing a new trial must be taken within sixty days after the order is entered on the minutes of the court, or filed with the clerk. (Moe v. Harger, 10 Idaho 194, 77 P. 645; Cunningham v. Stoner, 10 Idaho 549, 79 P. 228.)

That the verdict is against the law, and that the judgment is against law, are matters which cannot be reviewed by this court at this time. (Young v. Tiner, 4 Idaho 275, 38 P. 697; Brumagin v. Bradshaw, 39 Cal. 24.)

If the patient himself waives the privilege by a clause contained in the contract, that waiver is binding on anyone who claims under the contract, whether it be the patient himself or his representatives. (Adreveno v. Mutual etc. Assn., 34 F. 870; Foley v. Royal Arcanum, 151 N.Y. 196, 56 Am. St. Rep. 621, 45 N.E. 456; Alberti v. Railroad Co., 118 N.Y. 77, 85, 23 N.E. 35; Roseau v. Bleau, 131 N.Y. 177, 184, 27 Am. St. Rep. 578, 30 N.E. 52.)

A cross-examination of a party or of an expert should be allowed a liberal range, touching all matters testified to in chief, or tending to test the temper, motives, intelligence, accuracy, capability or means of knowledge of the witness. ( People v. Foley, 64 Mich. 148, 31 N.W. 596; Dillebar v. Life Ins. Co., 87 N.Y. 79; McFadden v. Railway Co., 87 Cal. 464, 25 P. 681, 11 L. R. A. 252; McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This is an appeal from a judgment and an order denying a motion for a new trial. The respondent has submitted a motion to dismiss the appeal from the order denying the defendant a new trial on the ground that the appeal was not taken within sixty days after the entry of the order as required by subdivision 3 of section 4807, Revised Statutes. The order denying a new trial was made and entered on the ninth day of October, 1905, and the appeal therefrom was not taken until the thirteenth day of March, 1906. Since the appeal from the order denying appellant's motion for a new trial was not taken within the time prescribed by the statute, it is ineffectual and must be dismissed, and it is so ordered. (Moe v. Harger, 10 Idaho 194, 77 P. 645; Cunningham v. Stoner, 10 Idaho 549, 79 P. 228.)

The judgment in this case was entered on the twenty-sixth day of May, 1905, but the appeal was not taken until March 13, 1906. The appeal from the judgment having been taken after a period of more than sixty days had elapsed from the rendition of the judgment and there being no appeal from the order overruling the motion for a new trial, we have no authority to examine the evidence for the purpose of determining its sufficiency to support the verdict nor for any other purpose except to determine whether or not errors of law were committed by the court in the course of the trial. Counsel for appellant have argued that since they moved for a new trial on the grounds that the verdict and judgment are both "against the law," this court should examine the evidence for the purpose of determining whether or not the jury brought in a verdict in accordance with the instructions given by the court. That contention is fully answered in Young v. Tiner, 4 Idaho 269, 38 P. 697, where this court says: "It is also contended by respondent that the second error assigned, to wit, 'that the verdict is against law,' cannot be considered, for the reason that it is 'not in proper form.' The appellant specifies and avers, in his statement on motion for a new trial, 'that the verdict is against law, as applied to the facts proven in the case,' and proceeds to support that averment by undertaking to show that the verdict is not supported by all of the facts proved by the evidence. This is simply another manner (under a different name) of showing that the evidence is insufficient to sustain the verdict, which cannot be done on this appeal. This court has no authority on this appeal to review all of the evidence to ascertain the facts proved, in order to determine whether the verdict 'is against law' when applied to such facts. This would simply be reviewing the evidence to ascertain whether it was sufficient to sustain the verdict, which is not permissible on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition thereof."

As the case is here only on appeal from the judgment, we are bound to confine our inquiries to the alleged errors of law.

This action was instituted to recover the sum of $ 2,000 claimed to be due the respondent as the beneficiary named in a benefit certificate issued by the appellant, Modern Woodmen of America, to one John B. Trull, now deceased. The only issue that was involved in the case in the trial court was as to whether or not the insured died of smallpox. The application for insurance contained a specific and express waiver of the right of recovery in case the insured should die of smallpox or varioloid. The company alleged that the insured died of smallpox, while the respondent, on the other hand, who is the beneficiary named in the certificate, contended that death resulted from erythemia and impetigo.

The first and principal question presented is as to the ruling of the court in permitting Dr. Taylor, who attended the insured during his last sickness, to testify as to the condition of the patient and what he learned from the patient in diagnosing the case. After the witness had testified at some length as to his visit and the condition in which he found the patient, he said: "I asked the man a question, what he had been taking, and he said he had been taking poison oak." Here counsel for appellant interposed: "We...