Opinion
6 Div. 953.
June 27, 1931.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Hiram Wood, of Birmingham, for appellant.
An enforced examination of appellant's person by appellee's agent (physician) forces appellant indirectly to give evidence against herself, which is a violation of her constitutional rights. Although this is not a criminal case the result would work a forfeiture against appellant and deprive her of her property rights without due process of law. American Cent. Ins. Co. v. Pepper, 62 So. 397, 9 Ala. App. 191.
J. Edgar Bowron, of Birmingham, for appellee.
The provision in the policy for an examination of the assured is a reasonable one, and necessary as affording a protection against fraud. 14 R. C. L. 1343; 5 Joyce on Ins. 5813; 4 Cooley's Briefs, 3449; Tompkins v. Pac. Mut., 53 W. Va. 479, 44 S.E. 439, 62 L.R.A. 489, 97 Am. St. Rep. 1006; Wehle v. U.S. Mutual, 153 N.Y. 116, 47 N.E. 35, 60 Am. St. Rep. 598; Gath v. Travelers Ins. Co., 113 Ohio St. 369, 149 N.E. 389. The examination, if made, would not come within the constitutional provision which protects a defendant in a criminal case from being forced to give testimony against himself. Ex parte Pepper, 185 Ala. 284, 64 So. 112.
The right of the insurer in health and accident insurance, in compliance with a stipulation to that effect, to cause the insured to be examined by a physician to be selected by the insurer, is recognized by the authorities as within the power of the parties thus to contract. 33 C. J. 20, § 671; 14 R. C. L. 1343, § 514; 5 Joyce on Ins. (2d Ed.) 5813, § 3491-a; 29 C. J. 282, § 8; Rocci v. Mass. Accident Co., 226 Mass. 545, 116 N.E. 477; Tompkins v. Pac. Mut. Life Ins. Co., 53 W. Va. 479, 44 S.E. 439, 62 L.R.A. 489, 97 Am. St. Rep. 1006.
It has not been thought that such an agreement is beyond the power of the parties to bind themselves. This court has held that the circumstances may justify a personal examination of plaintiff under supervision of the court in civil actions for personal injuries resulting from a tort. Ala. Great So. R. R. Co. v. Hill, 90 Ala. 71, 8 So. 90, 9 L.R.A. 442, 24 Am. St. Rep. 764; Id., 93 Ala. 514, 9 So. 722, 30 Am. St. Rep. 65.
The privilege of refusing to give evidence only applies to criminal prosecutions against the witness or of a nature which tends to incriminate him, and not otherwise in civil cases, though the damages are punitive. Ex parte Pepper, 185 Ala. 284, 64 So. 112; So. Rwy. Co. v. Bush, 122 Ala. 470, 26 So. 168.
There is no infringement of any constitutional right to which our attention is directed by an enforcement of the contract stipulations set up in the plea in this case. There was no error in overruling demurrer to such plea.
No other question is presented, and the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.