Aрpellee instituted suit in the Monroe Circuit Court against appellant to recover $250 upon a certifiсate of membership issued by appellant to her daughter, Annie M. Barker, on November 7, 1918, insuring her life against death on account of certain kinds of sickness.' It was alleged that the certificate provided for the рayment of that sum to her father, but, if dead, then to her mother, if the insured paid her dues and should die six years after the date of the policy. It was also alleged that the insured paid her dues regularly until her death, and that she died on September 8, 1920, subsequent to the death of her father.
Appellee filed an answer, admitting the issuance of a certificate of membership in its society, and the payment of dues thereon, but alleging that, under thе provisions of the certificate and by-laws of the society, it was exempt from liability if the insured died of malaria, and liable for only ten per cent, of the face value of the certificate if she died of а chronic disease; that she died from the effects of either malaria or pellagra, and that pеllagra was a chronic disease.
The cause proceeded to a hearing upon the pleadings and testimony, at the conclusion of which each party asked for a peremptory instruction. Thе court thereupon directed a verdict for appellee in the sum of $250. After the court decided thе case on the merits, appellant requested other instructions, which were refused. In our view of the case it is unnecessary to set them out or state them in substance. An appeal has been duly prosecuted to this court from the verdict and judgment rendered pursuant thereto.
There was a clause in the membership сertificate and by-laws of the society exempting appellant from liability for the death of the insured оn account of malaria or chronic disease. The evidence was in conflict as to whether thе insured died of malaria or pellagra.
Appellant testified that her daughter died from the effects of pellagra; that Dr.. Thornton, who attended her, said she had pellagra; that she had been well all her life until she became ill in July, 1920, before her death in September following.
Dr. Glephart testified that he was called as a рhysician to see the insured in September, 1920, and found her suffering from symptoms of pellagra.
Dr. Thornton, the regular аttending physician of the insured in her last illness, on direct examination, testified that she died from the effects of mаlaria; that pellagra was a chronic disease; on cross-examination, however, he testified, “About two months previous to her death she developed all of the signs of an acute case of pellagra, but in about a month and a half these acute signs receded and she resumed her usual duties.”
Under the doctrine announced in the case of St. L. S. W. Ry. Co. v. Mulkey,
In the course of 'the trial the court permitted appellee to show the cause of the insured’s death by her attending’ physician, Dr. Gephart, but refused to permit appellant to prove the cause of her cleath by Dr. Thornton, who was the insured’s general attending physician in her last illness. The evidеnce of Dr. Thornton was excluded because the information elicited was information acquired by him while аttending the insured in a professional character. Such information is a matter of privilege under sec. 4149 оf Crawford & Moses’ Digest, and cannot be introduced in evidence without the consent of the patient or thе patient’s representative. It is argued by appellant that appellee waived the right to objеct to the testimony of Dr. Thornton relative to the condition of the insured because she herself introduced the testimony of Dr. Gephart concerning the insured’s condition. This court has decided otherwise. Mo. & N. A. Ry. Co. v. Daniels,
No error appearing, the judgment is affirmed.