, , ADREVENO ,'11, MUTUALRF,sERVE FUND LIFE ASS'N.
(Oircuit O()Urt, E. D.Mi88()Uri, E. D.
The provisions of Rev. St. Mo. i\ 4017, prohibiting a physician from testif," , , ing.as to any inforPlation he, may have acquired from any patient while visitlng,him professionally. may be waived by the patient. and. when waived by & clause in an application for life insurance, such waiver is binding on the benetl.ciary. '
Action on life insurance policy. This.was an action by Giovani B. Adreveno, plaintiff, on a certificate of insUtanee issued to the son of plaintiff by the Mutual Reserve Fund Life Association, defendant, for the sum of $5,000. Plaintiff was the beneficiary named in the certificate. The defendant relied upon alleged false. representations in the application for the certificate as to the previQUS health and habits,of the deceased. To prove that these representations,were false, the defendant offered to introduce the testimony of sever8J. physicians, who had attended deceased prior to the date of the application. The plaintiff objected, on the ground that the witnesses were precluded from testifying under section 4017 of the Revised Statutes of Missouri. The questions and objections thereto were as follows: "Question. I will now ask you with what disease he was afflicted while he was there in the hospitijl? Counsel [01' the plaintiff objected, if the information oithe witness was obtained from the patient while attending him. Q. From whom did you get your information as to what he was afiiicted with. -from him by an examination of his pl·rson, or from talking with him? A. Yes. sir. Q.Was it necessary for you to get that information in order to treat him properly? A. Certainly it was. Plaintiff's counsel renewed his objection." CoUinstIc Jamison, for plaintiff. O. tIc J. O. Jonea, for defendant.
,THAYER, J., (after stating thefacts.) I see that the application for the policy contains the following clause: "And the applicant hereby expressly waives any and all provisions of law now existing. or that may hereafter exist, preventing any physician from disclosing any information acquired in attending the applicant in a professional capaoity or otherwise, or rendering him incompetent to testify as a witness in any w,ay Whatever." Section' 4017, Rev. St. Mo., declares that "the following persons shall be incompetent to testify: A physician or surgeon, concerning any inforrilation which he may have acquired from any patient while attending h,im in a profes$ional character, which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon." It has been held in this state in three cases, viz., the case of Groll v. T(YU)e7', 85 Mo. 253; Carrington v. Oity of St. Louis, 89 Mo. 208, 1 S. W. Rep. 240; and Squireav. Oityof Chillicothe, 89 Mo. 226, 1 S. W. Rep. 23,-that section 4017, which I have
KEENER V. UNION PAC; RY. CO.
just read, renders a physician incompetent to testify as'to the physical condition of a patient in those cases only where the patient or his legal representatives insist that he shall not testify. In other words, the statute is construed in this state as conferring a privilege merely, that may be waived; it is not declaratory of any public policy. The public is not concerned in excluding the testimony of a physician as to the condition of a patient, if the patient himself does not object to such disclosures. In this respect the courts of this state follow the rulings in New York and Michigan, under a similar statute, as appears by the cases of Oahen v. Insurance Co., 41 N. Y. Super. Ct. 296; Railro(£d Co. v. Martin, 41 Mich. 667,3 N. W. Rep. 173. As the patient is at liberty to waive the privilege which the law affords hiill, it appears to me it is immaterial whether the patient waives .neprivilege by calling the physician to testify in his behalf, or whether he 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 claims under the contract, whether it be the patient himself or his representative. The result is that, inasmuch as the assured by this application 'waived the privilege which the statute affords him, the father, for whose benefit the policy was issued, and who is now suing on the contract, is bound by that waiver. I therefore hold that the testimony is admissible.
(Circuit Court, D. Colorado. May 7, 1888 )
TRIAL-As OF RIGHT-TIME OF MOTION.
succeeding term. Held, under Code Civil Proc. Colo. §254, providing that the party !lgainst whom such judgment is rendered may, at any time "before the next succeeding term, "upon paying all costs, have the judgment vacated upon application to the court, that t11e motion was in time. and that delay of the court in acting upon the motion did not defeat the right granted by the Code.
tiJf paid the costs, and filed a motion for a new trial before the first day of the
After judgment for defendant in an action for the possession of land. plain·
At Law. On motion for new trial. Fed. Rep. 126.. Well8, McNeal &- Taylor, for plaintiff. Te1JBr·k Oralwod, for defendant.
For the original report see 31
BREWER, J. After judgment for deiendant in an action for the pO&,session of real property, plaintiff paid the costs and. filed a motion for a new trial before the first day of the succeeding term, and now asks an order of the court vacating that judgment, and granting him a new trial. It is objected that the application is not made in time. The statute (Code Civil Proc. § 254) provides that, when judgment shall be rendered,