Opinion
No. 32906.
November 29, 1937.
1. INSURANCE.
In action on life policy excluding liability if insured was pregnant at date of issue of policy and death resulted from such pregnancy, question whether insured was pregnant at date of policy and whether death resulted from such pregnancy was for jury under evidence.
2. WITNESSES.
In action on life policy excluding liability if insured was pregnant at date of issue of policy and death resulted from such pregnancy, student nurse in hospital who prepared room for insured's confinement, and who remained through the confinement, could testify regarding matters observed without violating the privileged communication statute (Code 1930, section 1536).
3. TRIAL.
In action on life policy excluding liability if insured was pregnant at date of policy and death resulted from such pregnancy, instruction that failure of plaintiff to introduce expert testimony or failure to throw light on issue touching pregnancy of insured, if any, authorized jury to consider that such testimony, if offered by plaintiff, would have been adverse to plaintiff's interest, was properly refused, since instruction was too general and left out entirely the question of whether expert testimony was available to plaintiff.
4. TRIAL.
In action on life policy excluding liability if insured was pregnant at date of policy and death resulted from such pregnancy, instruction submitting question whether pregnancy existed at time of giving of original premium receipt and instruction submitting question whether pregnancy existed on subsequent date when plaintiff alleged that policy was issued and took effect were not conflicting and calculated to mislead jury, where, if insurer's evidence was true, insured was pregnant on both dates.
5. STATUTES.
Statutes in pari materia, although apparently conflicting, should, if possible, be construed in harmony with each other to give effect to each.
6. STATUTES.
Where a general statute, if standing alone, would include the same matter as a special statute, the special statute will ordinarily be regarded as a qualification of the general statute.
7. STATUTES.
The privileged communication statute and statute permitting introduction in evidence of vital statistics records must be construed together (Code 1930, sections 1536, 4908).
8. WITNESSES.
The purpose of the privileged communication statute is to protect confidential matters growing out of the relation of physician and his assistants and patient (Code 1930, section 1536).
9. EVIDENCE. Witnesses.
In action on life policy excluding liability if insured was pregnant at date of policy and death resulted from such pregnancy, certified copies of vital statistics records consisting of insured's attending physician's reports to the department of vital statistics showing required facts with reference to death of the insured and birth of child were admissible, since, by adoption of statute permitting introduction of records of vital statistics, Legislature intended to except from operation of the privileged communications statute the vital statistics records (Code 1930, sections 1536, 4908).
APPEAL from the circuit court of Jones county. HON.W.J. PACK, Judge.
S.M. Graham, of Meridian, and A.S. Scott, of Laurel, for appellant.
The court below clearly committed reversible error in refusing the following instruction requested by the defendant: "The court instructs the jury that the failure of the plaintiff, if any, to introduce expert testimony or her failure to throw any light on the issue as touching the pregnancy of her daughter insured, if any, the jury may consider that such testimony, if offered by the plaintiff, would have been adverse to plaintiff's interest."
Haydel case, 171 So. 9.
The court erred in granting certain instructions for the plaintiff, particularly in that certain instructions conflict directly with the defendant's.
Plaintiff's instruction places the burden of proof upon the defendant to prove the insured pregnant at the date of the original receipt, which was November 11, 1936, whereas the declaration binds the plaintiff to November 30, 1936. It certainly does not have to prove she was pregnant prior to November 11, 1936. Yet, the instruction granted to the plaintiff of which we now complain plainly told the jury that the defendant must prove that the insured was pregnant prior to November 11, 1936, and no such burden rests upon the defendant. It is elementary law and needs no citation of authorities that the plaintiff is always bound by the allegations of her declaration. This is self-evident reversible error and cannot be cured by a thousand instructions.
May v. Culpepper, 172 So. 336.
The court erred in overruling the defendant's motion for peremptory instruction.
Metropolitan Life Ins. Co. v. Scott, 134 So. 159.
The appellant proved that the insured died of puerperal sepsis and that this could not have resulted from anything other than pregnancy. The appellant further proved by the nurse who saw the insured give birth to the still-born child that said child had hair on its head and developed finger nails and that it was a boy. The appellant also proved by Dr. Golden, a qualified expert, that no fetus has hair on its head or developed finger nails without having passed through a period of gestation of at least five months' duration. It is a matter of simply arithmetic to compute the time alleged in the plaintiff's declaration of November 30, 1936, to March 10, 1937, the date set forth by the plaintiff when the policy was issued and delivered and the death of the insured. This would, of course, be a period of only three months and ten days. And of course the plaintiff is bound by her declaration. So, the undisputed evidence shows that the insured gave birth to a child of at least five months. Therefore, the record clearly shows that the appellant was entitled to a peremptory instruction.
37 C.J. 649, sec. 405; National Life Ins. Co. v. Jackson, 161 Ark. 597, 256 S.W. 378.
The court erred in refusing to allow the appellant to introduce the death certificate from the Bureau of Vital Statistics of the insured, Mrs. Naomi Walters Ainsworth.
Section 4908, Code of 1930; Hunter v. Hunter, 127 Miss. 683, 90 So. 440; Protective Assn. v. Cranford, 137 Miss. 876, 102 So. 171.
The court erred in refusing to allow the defendant to introduce the birth certificate of the fetus born from Mrs. Naomi Walters Ainsworth.
Section 4908, Code of 1930.
Leonard B. Melvin, of Laurel, for appellee.
Miss Holifield, a student nurse at the hospital where the insured was a patient, was permitted to testify, over the objection of the plaintiff, as to what she saw and learned of the patient, the insured, at the time the insured was a patient in the hospital. I call the court's attention to the fact that Miss Holifield was the nurse sent to prepare the room. It is the contention of the appellee that this evidence offered by the defendant was incompetent. The information this young lady gained and to which she testified was obtained while she was in the employment of the hospital and assisting the doctor in charge of the delivery.
Miss. Power Light Co. v. Jordan, 143 So. 485.
I am unable to see how appellant can get any comfort out of the citation that it uses from 33 C.J. 872, or New Orleans G.N.R. Co. v. Walden, 133 So. 341. In fact, if appellee is able to understand the plain intent of the English language, these authorities are for appellee. The case of New Orleans G.N.R. Co. v. Walden, 133 So. 341, holds that the jury is the judge of the facts and the case having been submitted to the jury on these questions, it should not be disturbed.
It was necessary to assume the testimony of Miss Holifield to be true before Dr. Golden's testimony was competent. If Miss Holifield's testimony is incompetent, Dr. Golden's testimony is without a leg to stand on. There is absolutely no foundation for the assumption necessary to make Dr. Golden's testimony competent. The questions asked Dr. Golden by the appellant were asked by appellant assuming Miss Holifield's testimony to be true. If Miss Holifield's testimony is incompetent, the appellant could not obtain Dr. Golden's testimony. Appellee submits that under the previous holdings of this court Miss Holifield's testimony is clearly incompetent.
In the case of Metropolitan Life Ins. Co. v. McSwain, 115 So. 555, this court sustained Section 1536.
This court has said that one cannot set aside the effect of Section 1536 by doing indirectly what they cannot do directly. Section 4908 has been before this court only on two other occasions. On these occasions, this court has refused to say that Section 4908 abolishes Section 1536.
Mass. Protective Assn. v. Crawford, 102 So. 171.
Appellant seeks to avoid this policy under the following short phrase: "If insured is pregnant at the date of issue of policy and death result from such pregnancy." This phrase is hid deep in the bowels of the policy. There is no evidence that this stipulation of the policy was ever called to the attention of the insured. The only thing that insured had as evidence of the policy was the receipt issued by appellant insurance company. The only condition precedent named in the receipt is that the life proposed is alive and in sound health. If insured stated she was in good health, this would not avoid the policy.
2 A.L.R. 1503; 80 So. 516.
The condition under which appellant seeks to avoid this policy must be construed most favorably for the insured and against the appellant company, the insurer.
New York Life Ins. Co. v. Blaylock, 110 So. 432; Germania Life Ins. Co. v. Bouldin, 56 So. 610; New Amsterdam Casualty Co. v. Perryman, 140 So. 342; Georgia Cas. Co. v. Cotton Mills Products Co., 132 So. 73.
If appellant is to have relief under this provision of the policy, then pregnancy must be the direct cause of insured's death and the burden of proof is upon appellant to prove that pregnancy was the direct cause of the death of the insured. Did appellant meet this burden of proof? — No. The evidence shows plainly the contrary to be true. Dr. Golden, the expert witness, testified for appellant. Dr. Golden said pregnancy might have been the indirect cause. It could not have been the direct cause, and Dr. Golden did not say positively that pregnancy was the indirect cause. The burden being upon the appellant to make this proof, the appellee now contends that appellant has not only failed to meet this requirement, but appellant's own evidence shows just the opposite. Dr. Golden says that puerperal sepsis could, and in many instances did, set in after a woman was delivered. If a woman is delivered of a child, she is not then pregnant.
If the court should hold Miss Holifield's testimony competent, her testimony was indefinite and uncertain enough to raise a doubt in the minds of the jury. This is especially true when the jury considers her testimony with Dr. Golden's testimony.
The trial court gave the jury the benefit of this incompetent testimony. With this incompetent testimony, the jury found for appellee, and appellee respectfully submits that this court should not disturb the verdict of the jury.
Argued orally by S.M. Graham, and A.S. Scott, for appellant, and by Leonard B. Melvin, for appellee.
Appellee brought this action against appellant in the circuit court of Jones county on a life insurance policy issued by appellant to the daughter of appellee, Mrs. Naomi Walters Ainsworth, in which appellee was named as beneficiary. The policy was in the sum of $500. There was a trial resulting in a verdict and judgment in appellee's favor in that amount. From that judgment, appellant prosecutes this appeal.
The policy provides that there shall be no liability under it "if insured is pregnant at date of issue of policy and death results from such pregnancy." Appellant's defense was that insured was pregnant when the policy was issued, and that death resulted from such pregnancy. Appellant contends that it was entitled to a directed verdict as requested. We are of the opinion that the issue was one for the jury. We reach that conclusion from the following considerations: In appellee's declaration it is averred that the policy was issued and took effect on the 30th day of November, 1936. The evidence showed that the original receipt for the first four weekly premiums was dated November 11, 1936. In the trial appellee proceeded upon the theory that the policy took effect on that date, while appellant sought to hold appellee to the date set out in the declaration. On another trial, which must follow, that will probably not be an issue in the case.
The insured died on the 10th day of March, 1937, in the charity hospital at Laurel. Her death, therefore, resulted three months and ten days after the 30th day of November, 1936, and one day short of four months from November 11, 1936. Appellee made proof of the death under oath to appellant, as required by the policy. In the proof she stated that puerperal sepsis was the cause of death. Miss Holifield testified that she was a student nurse in the hospital, and on the 4th day of March, six days before the insured died, she (the insured) was delivered of a still-born male child; that she was present at the time of the birth and saw the child; that her best recollection was that it had hair and finger nails, and was a male. Dr. Golden testified as an expert on behalf of appellant that a fetus does not develop hair and finger nails until after five months of gestation, and that puerperal sepsis is a poison following childbirth alone. Therefore, taking as established facts that which the testimony of Miss Holifield and Dr. Golden tended to prove, in connection with appellee's proof of death, appellant would have been entitled to a directed verdict; that course could not be pursued, however, because of the uncertainty in Miss Holifield's testimony. She did not state positively that the child had hair and finger nails, but that she had that impression.
Appellee contends that the admission of Miss Holifield's testimony was error; that it violated our privileged communication statute, section 1536, Code of 1930. This position is based on the following facts, which are undisputed in the record: Miss Holifield was a mere student nurse in the hospital. The superintendent of the hospital requested her, together with one or more student nurses, to prepare the room for the insured's confinement. They did so. Miss Holifield remained through the confinement. Dr. Crocker attended the insured. Miss Holifield was neither his employee nor assistant; she was merely present after the preparation of the room. What she learned, therefore, was not privileged; she was a competent witness. Mississippi Power Light Co. v. Jordan, 164 Miss. 174, 175, 143 So. 483. In that case the court approved the principle as laid down by Wigmore in a footnote to paragraph 2382 of his work on Evidence, volume 5 (2 Ed.), that: "A nurse as an independent person, receiving medical confidence as such, is not within the privilege."
Appellant complains of the action of the court in refusing the following instruction: "The court instructs the jury that the failure of the plaintiff, if any, to introduce expert testimony or her failure to throw any light on the issue as touching the pregnancy of her daughter insured, if any, the jury may consider that such testimony, if offered by the plaintiff, would have been adverse to plaintiff's interest." Its contention is based on the decision of one of the questions involved in Robinson v. Haydel, 177 Miss. 233, 171 So. 7. In that case Dr. Hewes was Robinson's physician; what he learned, therefore, of Robinson's physical condition was privileged under the statute. At the trial Dr. Hewes was available to Robinson as a witness; he failed to introduce him. At the instance of Haydel, the court instructed the jury that if that were true it might create a presumption that if he were introduced as a witness his testimony would be unfavorable to Robinson. The court held that the instruction was proper. We are of the opinion that there was no error in refusing the instruction here; it was materially different from that involved in the Robinson Case. It is too general in the first place, and in the next place it leaves out entirely the question of whether the expert testimony was available to appellee.
The court gave an instruction for appellee submitting to the jury, among other things, the question of whether the pregnancy existed at the time of the giving of the original premium receipt which was on November 11, 1936, and gave one for appellant submitting to the jury, among other questions, whether the pregnancy existed on the 30th day of November, 1936. Appellant contends that these instructions are in conflict and calculated to mislead the jury. We think the contention without merit. If appellant's testimony be true, the insured was pregnant not only on November 30, 1936, but also on November 11, 1936, when the original premium receipts were dated.
Appellant offered in evidence certified copies from the records of vital statistics in the office of the State Board of Health, showing the required facts with reference to the death of the insured and the birth of the child. They were ruled out by the court on the ground that their admission would violate the privileged communication statute. Section 1536, Code of 1930. These records consisted of Dr. Crocker's reports to the department of vital statistics; in one he stated that the insured died on March 10, 1937, of puerperal sepsis, and in the other that the child was stillborn "about 6 mo. period of gestation." The privileged communication statute is in this language: "All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient."
Section 4908, Code of 1930, a part of the chapter on Health and Quarantine, is in this language: "Any copy of the records of birth, sickness or death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima facie in all courts and places of the facts therein stated."
The privileged communication statute, had been in force many years before the latter statute was adopted. Statutes in pari materia, although apparently conflicting, should, if possible, be construed in harmony with each other to give effect to each. Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Clarksdale Building Loan Association v. Board of Levee Commissioners, 168 Miss. 326, 150 So. 783. Where a general statute, if standing alone, would include the same matter as a special statute, the special statute will ordinarily be regarded as a qualification of the general statute. Greaves v. Hinds County, supra.
By the adoption of section 4908, the Legislature intended to except from the operation of the privileged communication statute the vital statistics records. These two statutes must be construed together. The purpose of the privileged communication statute was to protect confidential matters growing out of the relation of physician and his assistants and patient. When such are required by law to be made a public record, there is no longer any reason for their privacy. The records of the office of vital statistics are accessible to the public; they are no longer confidential. So construing the two statutes, the court was in error in excluding the records in question. This question was left open in Hunter v. Hunter, 127 Miss. 683, 90 So. 440, 441. The court said in that case that: "The privileged communication statute is not repealed by the Vital Statistics Act, unless it is repealed to the extent that a registrar's certificate made up from statistics or information obtained from the attending physician of the patient may be introduced in evidence to show the character of sickness or cause of death of the patient."
We are of the opinion that appellant's other contentions are without merit.
Reversed and remanded.