Summary
In Metropolitan Life Ins. Co. v. Evans, 183 Miss. 859 (184 So 426), plaintiff brought an action on an insurance policy, claiming the right to recover under a permanent disability provision thereof.
Summary of this case from Lebel v. SwincickiOpinion
No. 33386.
November 14, 1938.
1. WITNESSES.
Where insured voluntarily presented himself to physician employed by insurer to make physical examination of insured and report result thereof to insurer and not for purpose of receiving treatment, the expense of the examination being paid by the insurer, privilege of statute relating to communications made to physician by patient did not arise and was waived, since insured was not "patient" of physician seeking professional advice within statute (Code 1930, sec. 1536).
2. WITNESSES.
In action on total disability clause of life policy wherein insured testified as to his physical condition, refusal to compel insured to submit to physical examination as he sat in the witness chair as to his heart, blood pressure, prostate gland, abdomen and legs was not error where insured had made no exposure of his person in connection with his testimony or had otherwise waived the inviolability of his person, since no part of examination could have been made without an exposure of some portion of his person.
3. TRIAL.
In action on total disability clause of life policy, instruction that jury should find for plaintiff if as result of disability complained of common prudence would keep insured from performing work of any character, even though he made effort and had physical strength to perform some work with pain and suffering was erroneous as assuming that insured was in fact suffering from disability complained of.
4. TRIAL.
In action on total disability clause of life policy, instruction that jury should find for plaintiff if plaintiff was unable to do manual labor and was not fitted by training to perform any other kind of work for remuneration or profit in a substantial way was erroneous in that it permitted insured to recover if unable to do manual labor without connecting inability to do manual labor with particular causes complained of in declaration.
5. TRIAL.
In action on total disability clause of life policy, refusal of instruction that mere fact that insured could not then obtain employment as a sawmill laborer because of his infirmity, if any, did not entitle him to a verdict was not error, since instruction was argumentative, a charge on the weight of evidence and singled out and gave undue prominence to certain portions of evidence to exclusion of remainder.
6. INSURANCE.
In action on total disability clause of life policy, wherein insured claimed to have been permanently and totally disabled on or about August 17, 1937, refusal of instruction that jury should find for insurer unless they believed that work done by insured on or prior to August 17, 1937, unduly endangered his life or health, was not error, since disability prior to date designated although of evidential value was not determinative of right to recover.
7. INSURANCE.
Under total disability clause of life policy, insurer was not relieved from liability if insured could have continued to work without unduly endangering his life or health, but although insured may have been able to continue at work, it was unnecessary for him to do so if common care and prudence under the circumstances so required.
APPEAL from the circuit court of Jones county; HON.W.J. PACK, Judge.
Wells, Wells Lipscomb, of Jackson, and Welch Cooper, of Laurel, for appellant.
We earnestly and seriously contend that the testimony of Dr. Joe Green was competent and the court erred in excluding his testimony. The court excluded the testimony of Dr. Green and overruled the motion for a continuance on the ground that the testimony of Dr. R.H. Cranford was incompetent, holding that under Section 1536, Mississippi Code of 1930, the testimony of both Dr. Cranford and the testimony of Dr. Green would not be admissible. We earnestly urge that this was error. We urge that Section 1536, Mississippi Code of 1930, has no application. Daniel Evans was not a patient of Dr. Green nor was he a patient of Dr. Cranford. The relation of physician and patient did not exist. The communication in order to be privileged must be between a physician and a "patient under his charge or by one seeking professional advice." The statute is plain and unambiguous.
What can be the difference between a person submitting himself to examination by a physician employed by a life insurance company for the purpose of determining if the company will insure the life of the person examined, and going to the physician after the policy has been issued to determine if there is a disability? It has been held in a number of cases that in the case of an applicant for insurance, the relation of patient and physician does not exist and the physician may disclose what he has ascertained as to the condition of the applicant.
Travelers Ins. Co. v. Pomerantz, 218 App. Div. 431, 218 N.Y.S. 490; Lynch v. Germania Life Ins. Co., 132 App. Div. 571, 116 N YS. 998; Moutzoukos v. Mutual Benefit Health Acc. Assn., 69 Utah 309, 254 P. 1005; McGinty v. Brotherhood of Railway Trainmen, 166 Wis. 83, 164 N.W. 249; City of Cherokee v. Aetna Life Ins. Co. of Hartford, 215 Iowa 1000, 247 N.W. 495; 70 C.J. sec. 590; 28 R.C.L. 539, sec. 129; Travelers Ins. Co. of Hartford v. Bergeron, 25 F.2d 680, 58 A.L.R. 1127.
In a note to the case of Bassil v. Ford Motor Co., 278 Mich. 173, 270 N.W. 258, 107 A.L.R. 1491, the annotator says: "The general rule, in jurisdictions having a statute prohibiting a physician or surgeon from disclosing information acquired in attending a patient in a professional capacity, is that where the physician or surgeon is consulted for the purpose of examination only, and not for treatment, communications made to him, or information acquired by him, on such examination are not privileged."
Norwood v. State, 158 Miss. 550, 130 So. 733; McGuire v. C. A.R.R. Co., 178 S.W. 79, L.R.A. 1915F 888;
In this case Daniel was examined by Dr. Green for the purpose of enabling Dr. Green to inform the defendant with respect to the condition of Daniel. Dr. Green was not to treat or advise Daniel nor was he to perform any professional service for Daniel's benefit.
Wood v. Lisben, 138 Iowa 402, 116 N.W. 143, 128 A.S.R. 208, 16 L.R.A. (N.S.) 886.
We have no criticism to make of the privilege communication statute as written. It is the interpretation that has been put upon it that is altogether wrong. So long as the statute stands on our books, it should be enforced of course, but the statute is in derogation of the common law and no strained construction should be put on this statute to prevent the ascertainment of truth.
If we are altogether wrong in what we have heretofore said we now earnestly insist that the statute was waived by the plaintiff.
A waiver is to be predicated not only when the conduct indicates a plain intention to abandon the privilege, but also when the conduct (though not evincing that intention) places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege. It is not to be both a sword and a shield.
4 Wigmore on Evidence, sec. 2388; Dixie Greyhound Lines, Inc., v. Matthews, 177 Miss. 103, 170 So. 686; Chicago, etc., Ry. Co. v. Langston, 19 Texas Civ. App. 568[ 19 Tex. Civ. App. 568], 47 S.W. 1027, 48 S.W. 610; Keeton v. State, 175 Miss. 631, 167 So. 68; Epstein v. Penn. Ry. Co., 250 Mo. 1, 156 S.W. 699, 48 L.R.A. (N.S.) 394.
We come now to the question of the error of the court in refusing to permit an examination of the plaintiff while he was on the stand. The plaintiff testified at great length as to his infirmities. While it is not claimed that there was an exposure of a part of his anatomy not ordinarily exposed to the public, we do say that the plaintiff testified at great length as to his infirmities and at least once indicated a part of his body affected by disease.
It is a matter of common knowledge that the taking of the blood pressure of a patient is painless and that it is not subject to embarrassment, and that the same could have been done quickly and efficiently in the presence of the court, and the jury could have been advised definitely and positively as to the blood pressure. It is also a matter of common knowledge that an examination of the heart of the plaintiff by percussion and auscultation could have been made quickly, efficiently and without pain, without embarrassment and without delaying the court. The other examinations if not properly made before a jury could have been made, nevertheless, by a doctor quickly, without delay in the trial of the case and without embarrassment to the plaintiff and without doing the plaintiff harm. We submit that the refusal by the court to permit these examinations was error in the face of the case of Dixie Greyhound Lines, Inc., v. Matthews, 177 Miss. 103, 170 So. 686, 108 A.L.R. 134.
Teche Lines, Inc., v. Bounds, 179 So. 747.
The instruction given for the plaintiff reads as follows: "The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence in this case that the plaintiff is unable to do manual labor, it is your sworn duty to find for the plaintiff; if you further believe from a preponderance of the evidence that the plaintiff is not fitted by training and experience to perform any other kind of work for remuneration or profit in a substantial way." This instruction is wrong for the reason that it authorized the jury to return a verdict for the defendant if the jury believed the plaintiff disabled at the time of the trial of the case, though the jury may have believed the plaintiff not disabled at the time he claimed disability or at the time the policy was in force. The instruction is wrong for the further reason that it puts a greater burden on the defendant than the contract called for. Reference to the policy will show that the plaintiff was entitled to recover only in the event he was disabled "so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit." If the plaintiff is able to perform any work for compensation or profit, the company is not liable. In placing in this the two words "substantial way" has the effect of making a contract between the parties that the defendant did not make.
Instruction No. 11 requested by the defendant and refused reads as follows: "For the defendant, you are instructed that the mere fact that the plaintiff cannot now obtain employment as a sawmill laborer because of his infirmity, if any, does not entitle the plaintiff to a verdict."
We submit that the defendant is entitled to this instruction. The evidence shows that the plaintiff worked until the mill shut down. A great number of the employees of the Gilchrist-Fordney Company were thrown out of employment when the mill shut down and were unable to find other employment and the defendant was entitled to have this instruction directing the jury to return no verdict against the defendant merely because the plaintiff was unable to obtain employment as a sawmill laborer.
Instruction No. 16 requested by the defendant reads as follows: "You are instructed for the defendant that unless you believe from the evidence that the work done by the plaintiff on or prior to August 17, 1937, unduly endangered his life or health, you cannot find for the plaintiff but it is your sworn duty to find for the defendant."
The employment of Daniel Evans with the Gilchrist-Fordney Company was terminated on August 17, 1937. Under the provisions of the group policy, the coverage ceased at that time. The defendant's theory was that inasmuch as the plaintiff had worked right up to August 17th, and the testimony did not show but what he was as well able to work after that time as he had been before, that the defendant was entitled to this instruction. Leonard B. Melvin, of Laurel, for appellee.
At the time Dr. Green and Dr. Cranford made the examination here involved they were physicians, they were then engaged in the practice of medicine. The fact that they were physicians, and at that very moment engaged in the practice of medicine, is the prime factor that brought them in contact with the appellee. They were then engaged in the diagnosing and examining of the human body. One of the important and determining factors on which a doctor diagnoses a case is the history of the symptoms. They must obtain this information by asking the patient questions or by a voluntary statement from the patient. It was the purpose of the statute to protect the patient in a full and voluntary statement, or a voluntary exposure of his person to the physician for the purpose of an examination that his trouble might be correctly diagnosed. That a patient may appear before a physician and give a full exposure of his person, and a full statement of his condition without embarrassment, the statute could have no higher purpose. This purpose has heretofore been fully protected by this court. Except as a physician Dr. Green and Dr. Cranford was not qualified to testify. The only knowledge they possessed of the condition came to them from their examination of their patient. Dr. Green and Dr. Cranford had no knowledge upon the subject except that obtained in the course of their professional employment. Whatever information was brought to the attention of the examining physician, that would enable him to diagnose the condition of the patient and prescribe, was confidential information and within the provisions of the statute. The construction of the statute contended for by the defendant's counsel, that the fact that some other party selected the physician, he may then disclose the information obtained, would in appellee's opinion nullify the statute, and virtually overthrow the law.
Y. M.V.R. Co. v. Messina, 67 So. 963.
It has been the rule of this court to never permit the testimony of a physician gained while in professional duties and to admit only such information as the physician gained from a personal capacity. Recent decisions of this court are clear on this question.
Miss. Power Light Co. v. Jordan, 143 So. 485; Mc-Caw v. Turner, 88 So. 705; Hunter v. Hunter, 90 So. 440; Watkins v. Watkins, 106 So. 753; Hamel v. Southern Ry. Co., 74 So. 276.
The appellee is unable to find a single instant of this court where information gained by the physician in a professional way has been approved, but this court has been clear and convincing in the position that only is the testimony of a physician admissible where the physician has gained that information from a personal and social relation and the physician must be able to segregate the information gained in a personal and social way from any information gained professionally.
Dabbs v. Richardson, 102 So. 769; Y. . M.V.R. Co. v. Decker, 116 So. 287; Metropolitan Life Ins. Co. v. McSwain, 115 So. 555; N.O. N.E.R. Co. v. Jackson, 110 586; Provident Life Acc. Ins. Co. v. Chapman, 118 So. 437.
In the case of Metropolitan Life Ins. Co. v. McSwain, 115 So. 555, this court uses the following very pertinent language: "The relation of physician exists between the patient and the physican who has cause to make an examination and diagnosis of him in a hospital as well as outside a hospital or whether a pay patient or a charity patient, and such physician may not deliver his testimony so acquired in open court, or have it written down in so-called reports for consideration as evidence in contravention of our privileged communication statute."
Y. M.V.R. Co. v. Decker, 116 So. 287; Y. M.V.R. Co. v. Messina, 67 So. 963; 28 R.C.L. 539, sec. 129.
The case at bar bears no semblance to the Dixie Greyhound Lines case. The Greyhound case is so far different from the case at bar, suffice it to say: that in the Greyhound case, the plaintiff there made profert to the court and jury of her injury, exposing herself not to a physician, or physicians, in the privacy of their office, and confidential relations, but to a court and jury, and to the general public.
In appellant's fourth assignment of error it challenges the correction of the instructions given appellee. On this question it may be well for us to here review the instructions approved by the court in the case of Metropolitan Life Ins. Co. v. Lambert, 128 So. 750. It will be noted that in the Lambert case the trial court granted the same instructions and they were approved by this court.
There was not a word of evidence to show the appellee could work, at the time of the trial, or at the time he quit work. All of the evidence was to the effect that the appellee was unable to work and had been for some time before he quit work in August, 1937. All of the evidence showed appellee by the exercise of common care and prudence should have quit work before he did. The second instruction requested by defendant, and refused, does not correctly state the rule by which the jury should be guided.
Argued orally by W. Calvin Wells, Jr., for appellant and by Leonard B. Melvin, for appellee.
This is an appeal from a judgment awarding the appellee a recovery on a total disability clause of a life insurance policy. When the case came on for trial, the appellant applied for a continuance thereof because of the unavoidable absence of the physician, one of its witnesses. The Court declined to continue the case holding erroneously, as will hereinafter appear, that the proposed evidence of the physician was privileged under Sec. 1536, Code of 1930.
In 1936 the appellee was employed by Gilchrist Fordney Company, which was engaged in the manufacture of lumber. According to his evidence, he received a blow on the stomach in November, 1936, from which he was laid up until the following January, when he reported to his employer who put him "to piddling around for about three weeks." He was then given his regular job, but was unable to hold it, but did work "off and on" at light jobs until about August 17, 1937. According to a physician who testified in his behalf, he was totally and permanently disabled with an "enlarged heart and prostatic enlargement and hypertension," or high blood pressure. In support of its contention that the appellee was not permanently and totally disabled, the appellant offered another physician who would have testified that he made a physical examination of the appellee and found nothing of consequence the matter with him. On objection to this testimony, it was excluded as being privileged under Sec. 1536, Code of 1930, which provides that: "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 proceedings, except at the instance of the patient." In connection with this testimony, and in support of its competency, counsel for the appellant offered to prove that this physician was employed by the appellant to make a physical examination of the appellee and to report the result thereof to the appellant for its consideration in determining whether or not the appellee was disabled within the meaning of the policy; that the appellee voluntarily presented himself to this physician, not for the purpose of receiving treatment for, or advice as to, his physical condition, but solely for the purpose of permitting the physician to examine him and report his (the physician's) findings to the appellant — the expense of the examination being paid by the appellant. If the facts thus stated are true, this privileged communications statute has no application, for the appellee was not a patient of this physician and was not seeking professional advice from him, but, on the contrary, was submitting himself to an examination by the physician for the purpose of enabling him to report the facts he might thereby find to the appellant. The privilege of the statute, therefore, not only did not arise but was also waived. Norwood v. State, 158 Miss. 550, 130 So. 733; Keeton v. State, 175 Miss. 631, 167 So. 68; Dixie Greyhound Lines, Inc. v. Matthews, 177 Miss. 103, 170 So. 686. This physician was a competent witness as would also have been the absent physician hereinbefore mentioned — his examination of the appellee having been made under the same circumstances.
The appellee testified as to his physical condition. While on the witness stand, he was asked, but declined, to permit a physician to examine him physically, as he sat in the witness chair, as to his heart, blood pressure, prostate gland, abdomen, and legs. Counsel for the appellant then requested the Court to compel the appellee to submit to such an examination by a physician selected by the Court, whose charges therefor would be paid by the appellant. This the Court declined to do, and committed no error thereby. The appellee had made no exposure of his person in connection with his testimony, nor had otherwise waived the inviolability of his person, and no part of this examination could have been made without an exposure of some portion of his person. Yazoo M.V.R. Co. v. Robinson, 107 Miss. 192, 65 So. 241; Dixie Greyhound Lines, Inc., v. Matthews, supra; cf. Teche Lines, Inc., v. Bounds, Miss., 179 So. 747.
Two of the appellee's instructions to the jury are as follows: "The court instructs the jury for the plaintiff that if, as a result of the disability complained of by plaintiff, common care and prudence would keep insured from performing work of any character, even though he made an effort and had physical strength to perform some work with pain and suffering, yet under the terms of his policy you are entitled to find that plaintiff was totally and permanently disabled from performing any work for compensation; and if you further find that said disability originated before August 17th, 1937, it is your sworn duty to find for the plaintiff in the amount sued for."
"The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence in this case that the plaintiff is unable to do manual labor, it is your sworn duty to find for the plaintiff; if you further believe from a preponderance of the evidence that the plaintiff is not fitted by training and experience to perform any other kind of work for remuneration or profit in a substantial way."
The first instruction is inaptly worded in that it seems to assume that appellee was in fact suffering from the disability complained of and then charges the jury properly if the disability in fact existed. The second instruction is erroneous in that it permitted the appellee to recover if he "is unable to do manual labor," without connecting his inability to do manual labor with the particular causes therefor complained of in the appellee's declaration. Whether the defects in these two instructions would of themselves alone require a reversal of the case is not necessary to be here decided.
Complaint is made of two instructions refused the appellant, which read as follows: (1) "For the defendant, you are instructed that the mere fact that the plaintiff cannot now obtain employment as a sawmill laborer because of his infirmity, if any, does not entitle the plaintiff to a verdict." (2) "You are instructed for the defendant that unless you believe from the evidence that the work done by the plaintiff on or prior to August 17th, 1937, unduly endangered his life or health, you cannot find for the plaintiff but it is your sworn duty to find for the defendant." No error was committed in refusing these instructions. The first "was argumentative, a charge on the weight of the evidence, and also singled out and gave undue prominence to certain portions of the evidence, to the exclusion of the remainder." Potera v. Brookhaven, 95 Miss. 774, 49 So. 617, 619; Odeneal v. Henry, 70 Miss. 172, 12 So. 154; Mississippi Cent. Railroad Company v. Hardy, 88 Miss. 732, 41 So. 505; Hooks v. Mills, 101 Miss. 91, 57 So. 545. There are at least two defects in the second instruction. (1) The appellee claims to have been permanently and totally disabled on or about August 17, 1937; that he may not have been so disabled prior to that date is of evidential value, but not determinative of his right to recover; and (2) the appellant is not relieved from liability to the appellee if the appellee could have continued to work without unduly endangering his life or health. The appellee may have been able to continue at work, but it was not necessary for him to so do if common care and prudence, under the circumstances, so required.
Reversed and remanded.