8 Mo. App. 363 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is an action on a policy by which the defendant insures “ the life of George and Barbara Linz in the amount of $2,000,” payable to the survivor of them. George Linz died, and the plaintiff, the widow, brings suit. The defences are, that the deceased had become so intemperate as to seriously impair his health and induce delirium tremens, whereby his policy by its terms became void ; and .that the assured in their application represented the age of the deceased to be thirty-four years, when in fact it was forty years. There was judgment below for the defendant.
There can be no serious doubt as to the construction of the clause, “ in case the said person whose life is hereby insured shall * * * become so far intemperate as to impair his health seriously and permanently, or induce delirium tremens, .* * * this policy shall thereupon terminate, and be void and of no effect.” The policy is payable to the survivor of the two, ninety days after due notice and proof of the death of either of them. There is no uncertainty here, nor need intemperance on the part of both persons be shown to establish a breach. If Barbara, Linz had
It is objected by the plaintiff that physicians were allowed to testify upon the ti'ial as to information which they obtained from George Linz while he was their patient and they were attending him in a professional capacity. The rule which the court below adopted appeal’s from the directions which the court gave to Dr. Spiegelhalter, when objection was made by the plaintiff to the question whether, from the witness’s observations of the symptoms he saw in his patient, the witness could state from what disease the patient died. The court said: “You may state without regard to anything that he (the patient) may have said to you, without regard to any information which you may have derived from him. If the information you are about to give is in any manner founded upon information which you derived from a statement of the patient to you, you will not answer the question.” Comparing this ruling with the statute, we find the words are (sect. 8) : “ The following persons shall be incompetent to testify : * * * fifth, a physician or surgeon concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.”
Not so much because it is in derogation of the common law as because it is in exclusion of the best evidence on the ground of privilege, this exaction should be carefully limited to what the statute requires. In proportion as the sources of the best evidence are closed to courts of justice,, will be the inability of those courts to render judgments that
Applying what has been said, it is apparent that there was error in admitting evidence in the case at bar. The physicians testified, not merely to outward appearances that involved no professional examination, but, against objection, gave the results of information which they acquired through the medium of their professional attendance, though oral communications of the patient, and knowledge resulting from these, were excluded. There was testimony to the effect that a diagnosis could have been made simply from the objective symptoms, without inquiry, — for instance, whether the patient had slept, or as to his sensations, — and upon this basis the witnesses gave testimony as to the symp
The next question relates to the second ground of defence. None of the premiums paid were deposited in court by the defendant, and upon this ground the plaintiff objected to all evidence as to misrepresentation on the part of the deceased as to his age. The court overruled the objection and admitted evidence tending to show misrepresentation, and the jury were instructed to the effect that if, when the answer as to the age of the deceased was made, it was untrue, and that his age was forty years, then the false statement avoided the policy. The policy is dated August 2, 1870, and contains the following provision : “In ease of the forfeiture of this policy, the insured shall not be entitled to any return of premium or share of surplus funds.” The act of the Legislature of this State under which the plaintiff claims was approved March 23, 1874. The second section is retrospective in terms as well as prospective, and the question here has been argued whether the second section is constitutional, so far as it undertakes to affect contracts made before the law was passed. That section is as follows :.
“ In suits brought upon life policies heretofore or hereafter issued, no defence based upon misrepresentation in obtaining or securing the same shall be valid unless the
The first condition of this policy is : “ In case the statements made by or on behalf of, or with the knowledge of the said assured to said company, as the basis of, or in the negotiations for this contract, shall be found in any respect untrue, this policy shall be null and void.” This clearly refers to the application, in which the statements as to the age of the
It is urged on the part' of the defendant, that unless there is error in the action of the court below extending to both branches of the defence, the judgment should not be reversed. But it is impossible for this court to say on what ground the jury found for the defendant. As there was material error in relation to the admission of evidence as to the first defence, this may have prejudiced the plaintiff, who, therefore, is entitled to a new trial.
The judgment is reversed and the cause remanded.