86 Neb. 372 | Neb. | 1910
Action upon a benefit certificate issued by the defendant, a fraternal beneficiary association. No question is made as to the issuance of the certificate and the death of the assured, but the payment is resisted upon the ground that the application, certificate and by-laws constitute the contract, and that the assured made false answers to certain questions in the application which were material to the risk.' The questions and answers
The assured, on January 16, 1907, when he made the application, was a little over 30 years of age. In August, 1904 or 1905 (the evidence does not clearly indicate which year), he sprained his Avrist while driving, and soon after hurt it again. His Avidow testifies that in September, 1905, he saw a physician in regard to this injury, and that in May, 1906, he went to Omaha to be operated upon.
In the application the following Avaiver of privilege is found: “I hereby expressly waive for myself and my beneficiary or beneficiaries the privilege or benefits of any and all laAVS Avhich are now or may be hereafter in force making incompetent the testimony of or disqualifying any physician from testifying concerning any information obtained by him in a professional capacity. And I further expressly Avaive for myself and my beneficiary or beneficiaries the provision of any law,^ and the statutes of any state, now in force or that hereafter may be enacted, that Avould, in the absence of this agreement, modify or conflict with my contract with this society, or cause it to be construed in any way contrary to its express lan
Dr. Long testifies that about January 25, 1905, he was consulted by the assured with reference to the injury to his Avrist, and that, upon making an ocular and tactual examination, he diagnosed the condition as tuberculosis of the bones of the wrist joint. He Avas then asked whether he told Mr. Bryant at that time Avhat he was suffering with. The plaintiff objected to the question “as incompetent, irrelevant and immaterial, because no proper foundation has been made, because the relation of physician and client existed at the time, and the communication is privileged and could not be Avaived by Mr. Bryant in advance.” This objection Avas sustained by the court, to which ruling the defendant excepted. The defendant then offered to prove the fact sought to be elicited, which was objected to, and the objection sustained. The witness then testified that from the examination and diagnosis he then made lie Avas of opinion that tuberculosis must have existed in the system before that time.
Dr. A. P. Condon of Omaha testified that he was a practicing surgeon, that he became acquainted with the assured in June, 1905, that at that time Mr. Bryant had a tubercular inflammation of the wrist joint and carpal bone, that the bones and joints were diseased to such an extent that it became necessary to amputate the arm just above the wrist. His evidence was taken by deposition, and the record shows the following: “Q. 23. You may state now whether or not at . the time you made this examination, or at the time you performed the operation, you explained to Mr. Bryant the nature of his ailment? A. I don’t remember, but I do always explain to my patients the nature of their ailments. Q. 24. And what is
Dr. Bush testified that about March 10, 1907, he was consulted by the assured at Sumner, Nebraska, and that at that time he was suffering from tuberculosis of the lungs. Dr. Jones testifies that he was present at the amputation of the arm, that the disease Avas tuberculosis of the wrist, that on March 23, 1907, he was called to attend Mr. Bryant, that he then had acute miliary tuberculosis of the lungs. The court, holding the view that the applicant had by the written waiver in the application waived the statutory privilege as to confidential communications to his physician, permitted Dr. Smart to testify that he had been consulted by Bryant one or two years before his death, and that he then diagnosed his ailment as tuberculosis of the lungs, but excluded testimony offered that the witness told Bryant at that time that he had this disease. The court said in this connection: “I will state, so far as that Avaiver is concerned, it does not require you to divulge any communication which you made to your patient, simply information which you received of the condition in which you found him; and, to the extent of any communication which you made to him,, it would be a privileged communication which has not been waived.” This seems to have been the reason for the ruling as to all evidence of like nature.
The evidence of some of the physicians is to the effect that germs of tuberculosis are present in about 78 per cent, of people generally, that a person may carry these
The application shows the following as to the amputation:. “16. (a) Have you ever had any local disease, personal injury, oi; serious illness? Yes, (b) If so, explain fully, giving dates. Had hand amputated 2 years ago because, of an injury, (c) Was recovery complete? Yes. * * * 30. (a) Have you ever undergone a surgical operation? Yes. (b) If so, when? June, 1904. (c) Hive character of operation. Amputation of hand, (cl) Was recovery complete? Yes. (e) Give names and addresses of attending surgeons and physicians. A. P. Condon, Omaha.” And also a repetition of the same information on another page.
The defendant contends, first, that the court erred in refusing to permit the physicians who attended Bryant prior to the time he became a member of the society to state whether or not each told him at the time of the consultation that he had tuberculosis; and, second, that the court, erred in giving and refusing certain instructions.
As to the refusal to permit evidence that Bryant was
If the evidence should prove, hoAvever, that he had consulted reputable physicians as to his condition, .and that he had been told by them that he Avas suffering from such an insidious and dangerous disease as tuberculosis at a time so near the time of making the application as to rebut and repel the idea of forgetfulness or good faith on his part, the concealment of such a fact, so material to the risk, and one that, if knoAvn, his application would have been rejected, would avoid the contract. Royal Neighbors of America v. Wallace, 73 Neb. 409; Ætna Life Ins. Co. v. Rehlaender, 68 Neb. 284, and cases cited. In Judge Sedgwick’s opinion in the Wallace case (73 Neb. 409) the distinction is clearly pointed out, and the proper rule announced, to which doctrine Ave adhere.
The offered evidence would tend to show notice and knoAvledge by the applicant of the actual facts as to his condition before he made the representations. It Avas material to the issues, and, since the privilege was waived, was admissible. The two questions above referred to propounded to Dr. Condon were objectionable in form, and the answer to the first, except as to the portion admitted, was properly excluded. However, the evidence was in the form of a deposition, the questions and answers were within the power of inspection by the court,
In order to avoid needless expense and delay, where evidence is in the form of depositions, and the court upon inspection can see that, while the form of question may be technically objectionable, yet the answer furnishes proper evidence, it would facilitate the administration of justice to heed substance rather than form, overrule the objection, and admit the testimony. The exclusion of proof tending to show that the assured knew he had been ailing with tuberculosis before he made the application, we think was prejudicially erroneous.
Complaint is made as to the giving and refusal of a number of instructions. Instruction No. 12 is as follows: “You are instructed that in the medical examination, which was a part of said Ellard E. Bryant’s application for said benefit certificate, said Ellard E.. Bryant’s answers disclose that in the month of June, 1904, he had undergone a surgical operation for the amputation of a hand by Dr. A. P. Condon, a surgeon at Omaha, and that if you find from the evidence that the said Ellard E. Bryant had during the seven years immediately preceding the date of making such application had any knowledge that he had any other serious ailment, or had any knowledge of facts which furnish sufficient reason for him to believe that he was or might be at that time, or at any time during the seven years immediately preceding the application, afflicted with any other serious ailment or disease for which he had consulted persons or physicians, other than that for which he had consulted the said A. P. Condon, then his answer ‘no’ to said question, ‘Have you within the last seven years been treated for or' consulted any person, physician or physicians in regard to personal ailments?’ would not void said benefit certificate.” This instruction tells the jury that if Bryant during the seven years preceding the date of making
We are also of opinion that while, as the evidence stands, perhaps it was not erroneous to refuse to give instruction No. 9, requested by the defendant, with respect to the applicant’s knowledge that he was afflicted with a fatal disease, the court having excluded the evidence of the physicians tending to show such knowledge, still, if such evidence is offered and received at another trial, an instruction along this line, if the facts warrant it, is one which the defendant is entitled to have given to the jury, if it so requests. Royal Neighbors of America v. Wallace, 73 Neb. 409.
With the exception of instructions Nos. 12 and 14, hereinbefore mentioned, and instruction No. 9,which limits the question of- deceit to the camp examining physician, the instructions given by the court upon its own motion seem
For the errors pointed out, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.