Willig v. Prudential Ins. Co. of America

• Decision Date: 23 November 1942
• Citation: 71 Ohio App. 255,49 N.E.2d 421
• Parties: WILLIG v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Ohio Court of Appeals

49 N.E.2d 421

71 Ohio App. 255

WILLIG v. PRUDENTIAL INS. CO. OF AMERICA.

Court of Appeals of Ohio, First District, Hamilton.

November 23, 1942

David B. Wood and Leo J. Brumleve, Jr., both of Cincinnati, for appellant.

O'Brien & Beck, of Cincinnati, for appellee.

MATTHEWS Presiding Judge.

This is an action by the beneficiary of a policy of insurance upon the life of Laura P. Willig. The only issue of fact was raised by the reply traversing the allegations of the answer that there were false representations made in the application for insurance to the effect that the insured was last sick in December 1937; that she had never suffered from cancer; that she had not received treatment by a physician or at a hospital during the preceding three years; and that these false representations were made wilfully and fraudulently, with intent to induce the defendant to issue the policy of insurance and that the defendant was so induced to issue the policy.

The jury returned a verdict for the defendant and judgment was entered on the verdict. It is from that judgment that this appeal was taken. The evidence was conflicting and it is conceded that there was sufficient evidence to support the verdict.

Many errors are assigned in the trial of this issue.

Two physicians who had treated the insured, as her physicians during the three years immediately preceding the application for the insurance were called as witnesses by the defendant. The court, over the objection of the plaintiff, permitted these physicians to testify that the insured had been their patient during the three years, and up to the time of the application for insurance, but refused to permit them to testify as to the nature of the treatment, the disease from which she was suffering, or any communication made by her, or their advice to her, but the court did permit them to testify that an operation was performed upon her at St. Mary's Hospital, where she had been sent on the advice of one of them, and that one of the physicians had treated her with X-rays.

It is urged that the admission of this evidence violated the provisions of Section 11494, General Code, making a physician incompetent to testify 'concerning a communication made to him by his patient in that relation, or his advice to his patient.'

Does this statute preclude the physician from testifying that the relation of physician and patient existed at a specified time? It seems to us clear that it does not. Until the relation is disclosed, there is no privilege to be protected. The mere fact that the witness is a physician does not render him incompetent to testify either as to his advice or as to the person's physical condition. The court must find that the confidential relationship existed before it would be justified in ruling that the physician could not testify, and the court could only so find after hearing evidence on the subject in an open trial. The statute does not draw the cloak of secrecy over the fact that the relationship existed, but only over the interchange within the relationship.

That the physician is not incompetent as a witness as to the existence of the relationship (which, of course, includes consultation and advice as to some sickness) has been decided. Russell v. Penn Mutual Life Ins. Co., 70 Ohio App. 113, 41 N.E.2d 251; 8 Wigmore on Evidence (3 Ed.) 823, Section 2384, and cases cited in annotation to the text.

So we conclude that the physicians were not rendered incompetent to testify as to the existence of the relationship. And this competency extends to testimony as to the number of visits and the fact that treatment was administered.

One of the questions in the application for insurance, to which a negative answer was given, was as to whether the applicant had received treatment by a physician during the preceding three years without reference to the specific nature of the treatment. Under the authorities the physicians are competent witnesses as to that matter.

There was therefore competent evidence to the falsity of the answer to that question.

And such testimony is evidence that the applicant was not in good health. In 8 Wigmore on Evidence, 3d Ed., 824, Section 2384, it is said: 'This distinction is often of some practical significance; for example, in life insurance cases, the insured's allegation of complete health during a certain period may be disproved by the fact that a physician was often consulted * * *.'

The author supports his text by citations of cases from fourteen states and there seems to be no cases holding to the contrary. We see no violation of the confidential relationship in such testimony.

Objection was made to the introduction in evidence of a portion of a hospital record. The part admitted showed the name of the patient who was the insured, the date of admittance to the hospital, and the name of the attending physician. We think this was competent for the reasons given for the competency of the physicians to testify to the same matters.

Furthermore, the plaintiff testified that the insured had been treated by these physicians and had been in St. Mary's Hospital. While he testified that he had thought all or most of these incidents had occurred more than three years before the application for insurance, he concluded, after his memory had been refreshed, that he had been mistaken as to the time and that they and occurred within the three years. There could, therefore, have been no prejudice, even had the hospital record and the physicians' testimony been incompetent.

And in view of the plaintiff's testimony, there was no issue as to the falsity of the answer, and the only issues raised by this defense were whether the insured had made the answer, and, if so, whether she had made it wilfully and fraudulently.

The testimony presented an unusual situation. The plaintiff...