85 P. 1081 | Idaho | 1906
This is an appeal from a judgment and an order denying a motion for a new trial. The respondent has submitted a motion to dismiss the appeal from the order denying the defendant a new trial on the ground that the appeal was not taken within sixty days after the entry of the order as required by subdivision 3 of section 4807, Revised Statutes. The order denying a new trial was made and entered on the ninth day of October, 1905, and the appeal therefrom was not taken until the thirteenth day of March, 1906. Since the appeal from the order denying appellant’s motion for a new trial was not taken within the time prescribed by the statute, it is ineffectual and must be dismissed, and it is so ordered. (Moe v. Harger, 10 Idaho, 194, 77 Pac. 645; Cunningham v. Stoner, 10 Idaho, 549, 79 Pac. 228.)
The judgment in this case was entered on the twenty-sixth day of May, 1905, but the appeal was not taken until March 13, 1906. The appeal from the judgment having been taken after a period of more than sixty days had elapsed from the rendition of the judgment and there being no appeal from the order overruling the motion for a new trial, we have no authority to examine the evidence for the purpose of determining its sufficiency to support the verdict nor for any other purpose except to determine whether or not errors of law were committed by the court in the course of the trial. Counsel for appellant have argued that since they moved for a new trial on the grounds that the verdict and judgment are both “against the law,” this court should examine the evidence for the purpose of determining whether or not the jury brought in a verdict in accordance with the instructions given by the court. That contention is fully answered in Young v. Tiner, 4 Idaho, 269, 38 Pac. 679, where this court says: “It is also contended by respondent that the second error assigned, to wit, ‘that the verdict is against law,’ cannot be considered, for the reason that it is ‘not in proper form.’ The appellant specifies and avers, in his statement on motion for a new trial, ‘that the verdict is against law,
As the case is here only on appeal from the judgment, we are bound to confine our inquiries to the alleged errors of law.
This action was instituted to recover the sum of $2,000 claimed to be due the respondent as the beneficiary named in a benefit certificate issued by the appellant, Modern Woodmen of America, to one John B. Trull, now deceased. The only issue that was involved in the case in the trial court was as to whether or not the insured died of smallpox. The application for insurance contained a specific and express waiver of the right of recovery in case the insured should die of smallpox or varioloid. The company alleged that the insured died of smallpox, while the respondent, on the other hand, who is the beneficiary named in the certificate, contended that death resulted from erythemia and impetigo.
The first and principal question presented is as to the ruling of the court in permitting Dr. Taylor, who attended the insured during his last sickness, to testify as to the condition of the patient and what he learned from the patient in diagnosing the case. After the witness had testified at some length as to his visit and the condition in which he found the patient, he said: “I asked the man a question, what he had been taking, and he said he had been taking poison oak.” . Here counsel for appellant interposed: “We object to that, may it'please the court, as not being competent testi
This provision of our statute is to be found in the statutes of many of the states, and especially in California, New York and Missouri. It has been.quite uniformly held that, such a statutory provision disqualifies a physician from testifying concerning any facts learned by him or disclosures made to him in the course of his professional treatment of or attendance on a patient. (Freel v. Market St. Ry. Co., 97 Cal. 40, 31 Pac. 730; In re Flint, 100 Cal. 394, 34 Pac. 863; Streeter v. City of Breckinridge, 23 Mo. App. 244; Westover v. Aetna Life Ins. Co., 99 N. Y. 56, 52 Am. Rep. 1, 1 N. E. 104; Renihan v. Dennin, 103 N. Y. 573, 57 Am. Rep. 770, 9 N. E. 320.)
It has also been held-that the privilege accorded the patient by such a statute is a personal privilege, and cannot be waived for him by any other person, and that the death of the patient makes a waiver impossible, and that the physician can never thereafter be permitted to testify concerning any matter touching his professional employment during the life of the patient. (Westover v. Aetna Life Ins. Co., supra; Freel v. Market St. Ry. Co., supra.) On this point, however,
Counsel for respondent urge that since the statute specifically provides that this privilege of secrecy may be waived by the patient, and since the statute does not specify any particular time at which the waiver shall be made, it may be as effectually done by reason of a specific stipulation in the contract as at the time of the trial. The insured in this ease was required to sign a written agreement and application for insurance, in which the following clause is contained: “And I hereby expressly waive for myself and beneficiaries the privilege or benefits of any and all laws which are now or may be hereafter enforced, making incompetent the testimony of or disqualifying any physician from testifying concerning any information obtained by him in a professional capacity. ’ ’ Respondent relies on the effect of this stipulation for a justification of the admission of the evidence of the attending physician. The effect of such a stipulation or waiver appears to have been considered by some of the courts in states having statutes similar to ours relative to privileged communications. We will briefly revert to a few of these authorities: In Re Adreveno v. Mutual Reserve Fund Life Assn., 34 Fed. 870, the beneficiary had sued upon a life insurance policy, and it appeared that the application for the policy had contained a stipulation very similar to the stipulation in this case. The insurance company offered one of the attending physicians as a witness to prove that the insured had made false representations as to his physical condition and ailments, and upon the admission of such testimony, Judge Thayer said: “As the patient is at liberty to waive the privilege which the law affords him, it appears 4q me it is immaterial whether the patient waives the privilege iby calling the physician to testify in his behalf, or whether h.e waives it, as in this case, by a clause contained in the contract on which the suit is brought; and if the patient himself waives the privilege by a clause contained in the contract, that waiver, in my judgment, is binding on anyone who
Foley v. Royal Arcanum, 151 N. Y. 196, 56 Am. St. Rep. 621, 45 N. E. 456, was an action on a mutual benefit certificate, where the application for the insurance had contained a stipulation waiving the privilege of secrecy imposed by statute on the attending physician. At the time the contract was made the New York Code of Civil Procedure, sections 834 and 836, appear to have been substantially the same as our statute, but after the making of the contract and prior to the commencement of the action on the benefit certificate, the legislature so amended the statute as to require the waiver to be made at the time of trial. The supreme court of New York in that case sustained the stipulation of waiver and permitted the witness to testify, quoting at length from the opinion of Judge Thayer in Adreveno v. Mutual Reserve Fund Life Assn., supra. The court, in concluding that opinion, said: “It appears to us that these cases disposed of the question under consideration, that the waiver is not in contravention of any principle of public policy, and that the amendment to section 836 of the code, made after the contract, has no application. ’ ’
In the Matter of Coleman, 111 N. Y. 220, 19 N. E. 71, a firm of attorneys, Hughs & Northup, had been employed to prepare a will. After it had been drafted and' submitted to the testator, he requested both members of the firm to sign and attest the same as witnesses thereto. Upon the probate of the will the question arose as to the competency of the attorneys to testify concerning the mental capacity of the testator at the time he executed the will. In considering the effect of the New York statute (Code Civ. Proc., sec. 836), and the privilege granted thereby to communications made in the course of professional employment and
In the light of the foregoing authorities and with the understanding we gather as to the intention and purpose of the statute, we see no reason why the court should not give force and effect to the clause in the contract making the attending physician competent to testify in all matters the same as other witnesses. In that view of the case there could be no question but that the testimony of Dr. Taylor was properly admitted. The benefits of the waiver are equally as available to the beneficiary as to the insurer.
Appellant’s sixth assignment of error is that the court erred in sustaining plaintiff’s objection to the following question asked Dr. Taylor: “Q. At the time you understood
Appellant’s seventh assignment of error relates to the ruling of the court in permitting the witness, Dr. Adair, to answer the following question on cross-examination: “If a man died of the disease supposed to be smallpox, and the man who nursed him all that time had never been vaccinated, and did not take the smallpox at all from the patient, would you think it smallpox?” The principal objection urged by appellant to this hypothetical _ question is that it was not based upon the facts proven in the case. There was some evidence in the case that would justify a hypothetical question of the foregoing character, and bring it within the rule announced in Kelly v. Perrault, 5 Idaho, 221, 48 Pac. 45, and McLean v. City of Lewiston, 8 Idaho, 472, 69 Pac. 478. The rule is quite liberal in allowing a broad range of inquiry on cross-examination, and this rule is especially and particularly applicable when it comes to the cross-examination of that class of witnesses commonly called experts.
Appellant’s last assignment of error is directed to the action of the court in permitting the witness Dr. Taylor to answer the following question: “Didn’t he tell you that he wanted this to settle up the matter?” The witness at the time this question was asked was defendant’s witness and the question was asked by plaintiff’s attorney on cross-examination. He was testifying concerning a statement or proof which he had signed and delivered to the agent of the defendant company as a part of the death proof. This statement differed somewhat from the previous statement or certificate which the witness had signed as to the nature of the disease of which the insured died. The witness was testifying as to the statement made to him by defendant’s agent, and the facts and circumstances under which the additional certificate was signed; and the reasons therefor. Taking into consideration the other facts appearing' from the record, we do not think there was any error in permitting the answer to this question.
As previously stated, we have no authority or jurisdiction to examine the evidence in this case for the purpose of determining whether or not, as a matter of fact, it was sufficient to justify the jury in concluding that the insured did not die of smallpox. As to the questions of law presented, we do not think any error has been committed that would justify this court in reversing the judgment. The judgment is affirmed, with costs in favor of respondent.
