Patten v. United Life & Accident Ass'n — 45 N.Y. St. Rep. 661

Majority

p. 661

Charlotte E. Patten, Resp’t, v. The United Life & Accident Association, App’lt.^[1]

(Court of Appeals,

Filed June 7, 1892.)

Headnote

1. Insurance (Life)—Evidence—Visits of physician to insured—Code Civ. Pro., § 834.

In an action on a policy of life insurance, where the defense is that the insured was reinstated as a member upon a certificate that he was in good health while in fact he was then under the care of a physician, and died shortly after, testimony of the latter as to the number and dates of liis calls upon insured during his last illness are admissible unless his evidence was objected to and excluded under § 834 of the Code, and even then it would be error to exclude it unless it was shown that the information sought to be obtained was acquired by the witness while attending the insured as a patient, or that the information sought to be obtained from him was necessary in order to enable him to act in his professional capacity.

2. Same.

There is nothing in § 834 which prohibits the insurer from showing that insured was a patient of the doctor, that he attended him and that he

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was sick, nor which prohibits the doctor from testifying whether he was called upon to attend insured professionally before or after the date of the certificate as to health, or to tell how many times he attended him from the time of his reinstatement to the time of his death.

3. Same.

The doctor’s evidence was taken in Washington, D. C., hy interrogatories. The court would not allow the defendant to read several of the direct interrogatories, among others the fifth, but plaintiff was allowed to read a cross interrogatory as follows: “ If you shall have stated in answer to the fifth direct interrogatory the cause of death o'f Jarvis Patten, state now further whether you did not acquire such information in attending said P/atten as a patient in a professional capacity and whether such information was not necessary to enable you to act in that capacity? ” Held, error, as the cross interrogatory and answer were immaterial.

4. Same—Hostile witness.

After the exclusion of the doctor’s evidence as to the extent of the last illness, defendant called a daughter of plaintiff and attempted to show by her when her father’s illness commenced and that it existed when the certificate of health- was made, and the extent of the attendance of the physician, but failed to do so. Held, that defendant was not bound by her evidence, as she was a hostile witness largely interested in the success of her mother.

Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff.

Harry Wilber, for app’lt; J. A. 8hotidy, for resp’t.

This action was brought on a policy of insurance upon the life of Jarvis Patten. The defendant is an assessment insurance company and the policy by its terms was made payable to the plaintiff. It was provided in the policy that a failure to comply with the rules of the association as to the payment of assessments should render the policy void. Patten had failed to pay an assessment as required by the rules of the association, and for such failure his policy had lapsed and become void prior to the 19th day of April, 1888. On that day for the purpose of being reinstated as a member of the association he executed a certificate certifying that he was in good health, and that certificate was sent to and reached the defendant on the 23d day of April, 1888. Patten died on the 16th day of May thereafter; and the sole defense to this action which is now relied upon is that the certificate as to his health on the 19th day of April was untrue.

To defeat the action it was incumbent upon the defendant to show that at the date of the certificate Patten was not in good health'.'

Prior to the trial the evidence of Dr. Perrin, of Washington, D. 0., was taken, at the instance of the defendant, under a commis'sion issued for that purpose, and upon the trial it attempted to read i n evidence the doctor’s examination taken under the commission. The court, upon the plaintiff’s objection, refused to permit the answers to certain of the interrogatories to be read in evidence, and such refusals are now the defendant’s chief cause of complaint. In answer to the first, second, third and fourth interrogatories, Dr. Perrin stated that he was a physician, and that Ms place of residence was in Washington; that he knew Patten, and that his acquaintance with him continued until his

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death on May 16, 1888. The interrogatories overruled by the court and the objections made to them are as follows: “Did you attend Jarvis Patten professionally in his last illness?” “Did you continue in attendance upon Jarvis Patten until his death?” “When were you first applied to in reference to the last illness of Jarvis Patten; please give the exact date and time, whether day or night ?” “ Where did you first see Jarvis Patten concerning his last illness; at your office, or at his residence, or elsewhere?” These interrogatories were objected to by plaintiff’s counsel as" calling for a conclusion, and as incompetent and irrelevant.

The following interrogatories were objected to generally, no ground being stated : “ How many times did you attend him professionally intermediate the occasion you first saw him in relation to his health, as you have testified, and the death of Jarvis Patten ? Please give the dates and hours of your attendance as far as you are able ?” “ How many of these attendances were at your office, and how many at the house of Jarvis Patten ?” “ Please give the dates of such attendances at your office ?” “ Please give the dates of such attendances at the house of Jarvis Patten ?” These interrogatories do not appear to have been objected to under § 834 of the Code, and it was not objected that the doctor was not competent to answer the questions. ■ The defendant certainly had the right to show, if it could, by some witness that Patten was not in good health at the time he signed the certificate ; and if it could have shown by any witness that at or about that time he was in charge of a physician, it would have gone a great way to show the untruthfulness of the certificate and to> establish its defense. Patten died in less than a month after executing the certificate certifying that he was in good health, and his health during the whole of that time was a pertinent matter of inquiry and investigation, and the defendant had the right to show its condition by the doctor, unless his evidence was objected to and excluded under § 834 of the Code. But if we assume that the trial judge in excluding the evidence had in mind § 834 and intended to exclude it on account of the prohibition therein contained, the rulings were, nevertheless, erroneous. At the time the rulings were made it did not appear that the information sought to be obtained from the doctor was acquired by him while attending Patten as a patient, or that the information' sought to be obtained 'from him was necessary in order to enable him to act in his professional capacity.

There is nothing in § 834 which prohibited the defendant from showing that Patten was the patient of the doctor, that he attended him' as a patient, and that he was sick. Hor is there anything in that section which prohibited the doctor from testifying whether he was called upon to attend Patten professionally before or after the date of the certificate, or to tell how many time's he attended him, whether daily or hourly, from the 19th day of April to the 16th day of May. If the defendant had been permitted to read the answers to these pertinent interrogatories, it is possible that it could have proved facts enough, for submission to the jury as to the bad

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health of Patten at the time he made the certificate. It is no answer to the defendant’s claim of error in these rulings that it does not appear what the answers to the interrogatories were. It was not bound to insert in the record answers which it was not permitted to read, and the interrogatories being competent we cannot assume that material and relevant answers were not given by the witness in response to them. We are bound to assume that the excluded answers were harmful to the plaintiff, as her counsel would not, otherwise, have objected to them.

After the trial judge had refused to allow the defendant’s counsel to read the answers to the interrogatories specified, plaintiff’s counsel read the first cross interrogatory and the answer thereto, as follows: “ State whether or not you are a person duly authorized to practice physic or surgery? " And the witness answered: “I am duly authorized to practice physic and surgery.” ' And he read the second cross interrogatory and the answer thereto, as follows: “If you shall have stated in answer to the fifth direct .interrogatory the cause of death of Jarvis Patten, state now further whether you did not acquire ksuch information in attending said Patten as a patient in a professional capacity, and whether such information was not necessary to enable you to act in that capacity ? ” And the witness answered: “I did acquire such information in attending said Jarvis Patten in a professional capacity and such information was necessary to enable me to act in such capacity.”

Defendant’s counsel had not read the fifth direct interrogatory, nor the answer thereto, and had given no evidence by the doctor as to the cause of Patten’s death, and therefore the second cross interrogatory and the answer thereto were wholly immaterial. There was no necessity whatever for the plaintiff to show that the doctor acquired bis information as to the cause of Patten’s death while attending him in a professional capacity, and that such information was necessary to enable him to act in such capacity, as he had not previously given any evidence as to the cause of Patten’s death so far as this record discloses. If we should assume that the doctor obtained information of the nature of Patten’s sickness while attending him professionally, and that such information was necessary to enable him to act in his professional capacity, such assumption would not justify the exclusion ■of the1 evidence called for by the direct interrogatories above ’specified, because none of them called for the nature of the disease with which he was afflicted.

After the exclusion of the defendant’s interrogatories put to the doctor, it called as a witness a daughter of the plaintiff, and attempted to show by her. when the illness of her father commenced, ■ and that it existed at the time the certificate was made. It also attempted to show by her when the physician was first called to attend her father, and it was unable to show by her that her father’s illness commenced prior to the date of the certificate, or that the doctor had attended him prior to the 5th day of May. But the defendant was not bound by her evidence. We may assume that she was a hostile witness, largely interested in the sue

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cess of this action brought by her mother. We may also assume that the defendant was forced to call her because of the exclusion of the evidence taken under the commission, and hence that the exclusion of that evidence was damaging to it. Rules of evidence play an important part in the administration of justice. They should be reasonably and consistently enforced so as to give certainty to the law which protects the rights of parties. We cannot, without doing injustice to the defendant, ignore its exceptions now brought to our attention, and for the errors which they point out the judgment should be reversed, and a new trial granted, costs to abide the event.

All concur.