Adreveno v. Mutual Reserve Fund Life Ass'n

34 F. 870, 1888 U.S. App. LEXIS 2381

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: April 23, 1888
• Status: Published

Opinion

Thayer, J.,

(after stating the facts.) 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 capacity or otherwise, or rendering him incompetent to testify as a witness in any way whatever. ”

Section 4017, Rev. St. Mo., declares that “the following persons 'shall be incompetent to testify: A physician or surgeon, concerning . any information which he may have acquired from any patient while attending him in a professional 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. Tower, 85 Mo. 253; Carrington v. City of St. Louis, 89 Mo. 208, 1 S. W. Rep. 240; and Squires v. City of Chillicothe, 89 Mo. 226, 1 S. W. Rep. 23, — that section 4017, which I have 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 Cahen v. Insurance Co., 41 N. Y. Super. Ct. 296; Railroad 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 him, it appears tome it is .immaterial whether the patient waives me privilege by calling the physician to testify in his behalf, or whether he waives it, as in this ease, 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 any one wbo claims under the contract, whether it be the patient himself or his representativo. The result is that, inasmuch as the, assured by this application waived the privilege which the statute affords him, the father, for whose benefit tha policy was issued, and who is now suing on the contract, is bound by that waiver. I therefore hold that the testimony is admissible.