Summary
In Provident L. A. Ins. Co. v. Jemison, 153 Miss. 53, 120 So. 180 (1929), the policy was effective fifteen (15) days from and after date. It was dated June 18, 1927, and on July 3, 1927, the insured developed an illness in the nature of rheumatism, which he first felt around 9 a.m. The Court held that, in the absence of statute or specific contract provisions to the contrary, the law does not take cognizance of a fraction of a day.
Summary of this case from Cruse v. Aetna Life Ins. Co.Opinion
No. 27524.
January 21, 1929.
1. TIME. Law does not, in absence of statute or contrary contract provision, take cognizance of fraction of day; day of disability policy, taking effect fifteen days after delivery, is counted as one day.
The law does not, in the absence of statute or contract provision to the contrary, take cognizance of the fraction of a day, and where an accident and disability policy takes effect on a given day at noon, and it is provided, in case of disease, that it shall take effect fifteen days from the delivery, the date of the policy is counted one day, and, if the fifteen days have expired before the disease has become manifest or active, the policy covers disability resulting from such disease.
2. INSURANCE. Beginning of disability, within accident and disability policy, is time when disease first becomes manifest or active.
A charge to the jury, in a suit on an accident and disability policy, that by the beginning of the disability of the plaintiff is meant the time when the disease first becomes manifest or active, and does not mean the time when the medical cause of the disease may have originated or begun, is not erroneous.
3. WITNESSES. Testimony of physician treating insured as to nature and character of disease is inadmissible ( Hemingway's Code 1927, section 7455).
By statute (section 7455, Hemingway's Code of 1927; section 3695, Code of 1906), a physician is incompetent to testify as to facts learned by him as physician, in treating the patient; and it is not error to exclude the evidence of the physician who treated the plaintiff, as to the nature and character of the disease treated by him.
4. APPEAL AND ERROR. Supreme court may enter judgment according to undisputed proof, confirming liability under accident and disability policy.
Where the proof of the duration and character of illness is not disputed in a suit on an accident and disability policy, and liability is established on the policy, and the jury, in disregarding the evidence, find for less than the undisputed evidence discloses to be his due, on appeal the supreme court may reverse the amount of the judgment, and enter judgment according to the proof confirming liability.
APPEAL from circuit court of Forrest county, HON. R.S. HALL, Judge.
T.J. Wills, for appellant.
Appellee was suffering from the disease before noon of the 15th day after the issuance of the policy. Under the plain terms of the contract made and entered into by the plaintiff with the defendant company he was not entitled to recover.
It was error for the court to exclude the testimony of Dr. McLeod. Communications between a physician or surgeon and a patient are privileged communication, but it is a privilege that the patient can always waive. It was a part of the contract entered into that if a claim was made under the policy it must be supported by the written report of the attending physician or surgeon; and this report discloses the condition and probable duration of the disease of the plaintiff. This report required from the physician and surgeon under the conditions in which it is made privileged was the condition precedent to his right to recover. This was a waiver of the privilege. It was a part of the contract; and the exclusion of this evidence was error. Woodmen of the World v. Farmer, 116 Miss. 626, 77 So. 655.
Haralson Hall, for appellee.
The difference between the medical cause and the disease itself is obvious. Such difference is clearly explained in Cohen v. North American Life Casualty Co. (Minn.), 185 N.W. 939. A counting of the days will demonstrate that fifteen days had elapsed from the date of the policy, June 18, to July 3rd. True it is that the policy as a whole took effect at noon, June 18th. However, this provision regarding the noon hour had to do with the provision as to accidental death, etc. The sick benefit was to take effect after the policy had been in continuous force fifteen days. It says nothing about half days. Consequently the first day of the fifteen-day period expired at 12 o'clock midnight, June 18th. Counting the days from that time it will be found that fifteen days had expired at midnight July 2nd.
The appellant also complains about the refusal of the court to let Dr. McLeod testify. We say that the trial court was correct and in fact very liberal to the appellant in this respect. Contrary to the assertion of the appellant, there was nothing in the policy itself which waived the privileged communication statute. The policy simply provided for a written report of the attending physician or surgeon, to accompany the claim blanks. The doctor's report to the claim blanks was filled out by Dr. Summers, and not by Dr. McLeod, the witness for the insurance company.
The burden of appellee's complaint is this: The appellee sued for seven hundred and twenty dollars. This the appellee (plaintiff below) proved. Not one word of testimony was introduced by the appellant insurance company to the contrary. But the verdict of the jury was only three hundred and sixty dollars. We therefore most earnestly solicit this court to enter judgment here in the full amount sued for to-wit, seven hundred and twenty dollars.
This cause is appealed from the circuit court of Forrest county from a judgment for three hundred and sixty dollars in favor of Jemison against the appellant upon a policy of accident and sick benefit insurance. Paragraph 8, section (a), of the policy provides:
"The company will pay monthly sickness indemnity for the period not exceeding one year during which the insured shall be wholly and continuously disabled and prevented from performing any and every duty pertaining to any business or occupation by reason of sickness, and if such disability shall continue for more than one year, the company thereafter will pay one-fourth of said monthly sickness indemnity for so long as it shall continue; but no indemnity shall be payable under this part for any period during which the insured is not regularly treated by a licensed physician."
By another clause of the policy it is provided:
"This policy, except part VIII, takes effect at twelve o'clock noon of the date hereof, standard time, at the insured's residence, if the insured is in sound health and free from injury at that time, and part VIII takes effect fifteen days thereafter, in accordance with paragraph (2) of the insuring clause, if all premium due meanwhile has been paid as agreed. If not written on the monthly payment plan, the whole policy expires one year from its date, if not renewed or terminated sooner in accordance with its terms; if written on the monthly premium payment plan the whole policy shall be in force so long as the premiums are paid under the terms of the pay order therefor, unless cancelled by the insured or the company at the expiration of the policy year in accordance with the terms of said pay order."
The policy was dated on the 18th day of June, 1927, and on the 3d day of July, 1927, the appellant developed an illness in the nature of rheumatism, which he first felt about nine o'clock a.m. on that date. This rheumatism being quite painful, he went to a doctor in the afternoon of that day, and was examined and found unable to work at his occupation. He filled out his report to the company on said date, which was mailed about a week thereafter. After such date he was unable to follow his occupation, which was that of a railroad man, and was constantly treated by a physician. He first went to the physician of the railroad company, who pronounced his trouble gonorrheal rheumatism, and treated him for that; but, as this ailment is not one that the railroad company's physician treats at the company's expense, he later went to another physician, and also went to a dentist. When he went to the dentist for an examination, the latter pronounced his trouble due to pyorrhea, and extracted his teeth, and advised him to go to Hot Springs for further treatment. He also went to another medical doctor, who examined him, and pronounced his ailment pyorrheal rheumatism, and testified, as did the dentist, that his ailment was due to infection from pyorrhea, rather than gonorrhea.
The first doctor who treated him was offered as a witness by the defendant, and his testimony was excluded by the court, on the ground that it was a privileged communication; but the doctor testified, in the absence of the jury, that on the 3d day of July, 1927, he examined the plaintiff, whom he found to be infected with gonorrhea, and that it would take at least three days after infection with that disease before the rheumatism would develop.
The plaintiff testified that, when the doctor told him it was gonorrheal rheumatism, he thought that was the trouble, as in years past he had been infected with that disease, but that he did not have it at that time. The doctor testified that he did have it at that time; that he made an examination of him, and found him to be so infected. It appears, without dispute, that from the 3d day of July, 1927, the plaintiff was not able to follow his occupation, but was treated for his trouble until the filing of the suit; that he had one finger that was stiff from the trouble, and did not yield to the treatment.
The principal ground relied upon for reversal is that the defendant should have had a peremptory instruction, because the disease which caused the rheumatism was contracted prior to the expiration of fifteen days from the date of the policy. In the absence of a statute or a specific contract to the contrary, the law does not know or take cognizance of the fraction of a day. Consequently the date of the policy is counted as part of the fifteen days, and the fifteen days would expire before July 3d.
It is contended that, as the testimony showed either pyorrheal or gonorrheal rheumatism, either of which would require some time to become active after infection, the defendant was necessarily entitled to a peremptory instruction, because at least three days would be required in case of gonorrhea for the rheumatism to develop, and that the disease from which it developed was necessarily in the system of the plaintiff for at least that length of time, and that the testimony showed that a person might have pyorrhea a long time before it would develop a case of rheumatism.
The court charged the jury, for the plaintiff, that by the begining of the disability of the plaintiff is meant the time when the disease first became manifest or active, and did not mean the time when the medical cause of the disease may have originated or begun. It is urged that this instruction is erroneous, and the proof shows that his system was infected with disease before July 3d, although the disease became active or manifest only on that date. We think the instruction is a correct pronouncement of the law, and that the court was not in error in giving this instruction.
It is also complained that the court should have admitted the testimony of Dr. McLeod, the railroad physician who first treated the plaintiff. We have repeatedly held that a physician is incompetent to testify against his patient as to matters learned in his professional capacity, and the court properly excluded this evidence. Therefore, on direct appeal, the judgment will be affirmed.
The appellee filed a cross-appeal, in which he insists that the judgment shall be for seven hundred and twenty dollars, instead of for three hundred and sixty dollars, as rendered by the jury. There is no dispute as to length of time that the plaintiff was under the disability, and at the rate provided by the policy the amount would be seven hundred and twenty dollars, the amount sued for, instead of three hundred and sixty dollars, the verdict rendered by the jury. The jury verdict establishes liability on the company under the policy, and as there is no dispute as to the amount due under the terms of the policy, with the liability established, we think the cross-appellant is entitled to have judgment for seven hundred and twenty dollars, rather than for three hundred and sixty dollars; and the judgment on cross-appeal will be reversed, and judgment rendered here for seven hundred and twenty dollars, with interest thereon from the date of the judgment in the court below.
Affirmed on direct appeal. Reversed and judgment rendered on cross-appeal.