Sovereign Camp, Woodmen of the World v. Farmer

77 So. 655 | Miss. | 1917

Smith, C. J.,

delivered the opinion of the court.

This is an action at law instituted by appellee to recover upon a beneficiary certificate issued for her benefit to her husband, John Kendall Farmer, now deceased. In the application made by Farmer for the certificate he certified, agreed,'and warranted that he was “of sound bodily health and mind,” and in answer to the question, “Have you consulted or been attended by a physician for any disease or injury during the past five yearsV’ he answered, “No.” The beneficiary certificate afterwards delivered to him contained the following stipulation:

“This certificate is issued and accepted subject to all of the conditions on the bach hereof, and this certi-’ fieate, together with the articles of incorporation, constitution, and laws of the Sovereign Camp, Woodmen of the World, and the application for membership and. medical examination of the member herein named, and all amendments to each thereof, shall constitute the agreement between the society and the member.”

One of the conditions on the bach thereof was that:

“If any of the statements, or declarations in the application for membership, and ..upon the faith of which this certificate was issued, shall be found in any respect untrue, the certificate shall be null and void, and of no effect, and all moneys which shall have been paid, and all rights and benefits which have accrued on account of this certificate shall be absolutely forfeited.”

Attached to the policy was an acceptance thereof signed by Farmer reading as follows:

“I have read the above certificate, No. 80343, of the Sovereign Camp, of the Woodmen of the World and the conditions thereon, and hereby agree to and accept the same as a member of Camp 958, state of Mississippi, this 22d day of February, 1915, and warrant that I am in good health at this time, and that all the requirements of section 58 of the constitution and laws of the order have been complied with.”

Appellant pleaded the general issue, and by its second, third, and fifth pleas set forth an alleged breach of the warranty of good health, contained in the application for the certificate, and by the fourth an alleged breach of the same warranty contained in the written acceptance by Farmer of the certificate attached thereto. To the second, third, and fifth of these pleas appellee filed replications setting forth that she should not be barred of her action because of the matters and things set up therein, for' the reason that a copy of the application had not been attached to the certificate and delivered with it to Farmer, which replications were ■ demurred to by appellant. This demurrer was overruled, and, issue having been joined upon appellant’s fonrth plea, the cause proceeded to trial on the merits. At the close of the evidence peremptory instruction was granted at the request of appellee and there was judgment accordingly.

Appellee offered to prove by Dr. Malone that he had treated Farmer some time before his death for a disease of which he seems afterwards to have died, and that he also treated him at the time of his death some months after the issuance of the certificate. This evidence on motion of appellee was excluded on the ground that Dr. Malone was incompetent to testify because of section 3695, Code of 1906 (Hemingway’s Code, section 6380). Counsel for appellent then stated to the court that he had several witnesses present by whom he could prove that Parmer was not in good health “at the time of his receipt of the certificate sued on,” but that they were physicians and had obtained their knowledge from Parmer while treating bi-m pro-' fessionally. The introduction of these witnesses was objected to by counsel for appellee and the objection sustained. The application made by Farmer for the issuance of the certificate contained the following stipulation :

“I further waive for myself and beneficiaries the . privileges and benefits of any and all laws which are now in force or may hereafter be enacted in regard to disqualifying any physician from testifying concerning any information obtained by him in a professional capacity. ’ ’

This certificate was delivered to Parmer on the 22d day of February, 1915, at which time fraternal orders came within the provisions of section 2675, Code of 1906 (Hemingway’s Code, section 5141), requiring the delivery “to the insured with the policy, certificate, or contract of insurance in any form a copy of the insured’s application,” and providing that “ in -default thereof said life insurance company shall not be permitted in any court of this state to deny that any of the statements in said application are true,” but prior to the trial in the court below chapter 206, Laws of 1916, had been enacted, by which only are fraternal orders now governed,' and which contains no provision requiring a delivery to the insured of a copy of the application on which the policy was issued.

The errors assigned and argued are: First, that the court erred in overruling the demurrer to appellee’s replications to appellant’s second, third, and fifth pleas; and, second, that the court erred in excluding the testimony of the physicians.

The ground upon which it is claimed that the demurrer should have been overruled is that section 2675 of- the Code of 1906 (Hemingway’s Code, section 5141), creates only a rule of evidence which was repealed by not being brought forward into chapter 206, Laws of 1916. This section of the Code creates not a rule of evidence, but a rule of substantive law, for it deals not with the method of proving a' fact, but with the substantive rights of both the insurer and insured under a policy which has been delivered to the insured without a copy of the application therefor attached thereto, and its provisions became a part of the contract here entered into to, the same extent as if appellant had expressly agreed in its certificate not “to deny that any of the statements in said application áre true.” The demurrer therefore was properly overruled.

The privilege created by section 3695, Code of 1906 (Hemingway’s Code, section 6380), is personal to the physician’s patient, and may be waived by him either before or at the trial, and, since one of the considerations upon which this policy was issued was the wáiver by Fármer of such privilege, it follows that his physicians were competent witnesses, although they obtained their knowledge of his condition while treating him professionally. Trull v. Modern Woodmen, 12 Idaho, 318, 85 Pac. 1081, 10 Ann. Cas. 53; Fuller v. K. of P. 129 N. C. 318, 40 S. E. 65, 85 Am. St. Rep. 744; Adreveno v. Mutual Reserve Ass’n (C. C.), 34 Fed. 870; Keller v. Home Life Ins. Co., 95 Mo. App. 627, 69 S. W. 612; Modern Woodmen v. Angle, 127 Mo. App. 94, 104 S. W. 297; National Annuity Ass’n v. McCall, 103 Ark. 201, 146 S. W. 125, 48 L. R. A. (N. S.) 418; Metropolitan Life Ins. Co. v. Willis, 37 Ind. App. 48, 76 N. E. 560; Bryant v. Modern Woodmen, 86 Neb. 372, 125 N. W. 621, 27 L. R. A. (N. S.) 326.

This evidence, however, must be confined, to facts tending to prove Farmer’s state of health after his application for the certificate was made, for, as herebefore set forth, appellee cannot now deny the truth of the statements contained in the application, and because of the- statute hereinbefore referred to the case in all respects must he tried upon the theory that Farmer was in good health when the application was made. The testimony of the physicians, therefore, was competent in so far as it dealt with matters occurring after the making of the application, but not in so far as it dealt with matters occurring prior thereto, and, since the objections to this testimony were not limited to the incompetent portions thereof, they should have been overruled.

Reversed and remanded.