Boyle v. Northwestern Mutual Relief Ass'n

70 N.W. 351, 95 Wis. 312, 1897 Wisc. LEXIS 188

• Court: Wisconsin Supreme Court
• Decided: February 23, 1897
• Status: Published

Opinion

PiNNEY, J.

1. The deceased, in her application for membership, in answer to the question, “ Are you now in sound-health ? ” answered “ Yes,” and by the terms of her application she “ covenanted and warranted all the foregoing answers and statements,” including the one in question, “ to be full, complete, and true, and that this written application, •and the truth thereof, shall be the basis of my rights of membership” in the defendant association; and on her certificate the condition was indorsed, that it was “ issued and •delivered in consideration and on the faith that the application” made by her “is complete and true, and contains all her answers and statements; otherwise this certificate shall be void.” The jury found that the assured, Bridget Boyle, believed herself to be in sound health and free from disease ■at the time she made and signed her application, and that at that time she was not in sound health and free from disease. We think that the statement in her application and the con•dition indorsed on her certificate constitute a warranty that Mrs. Boyle was at the time in sound health, and was made by the parties the basis of her rights of membership; that it was a condition of the contract, and, if untrue, that her certificate is null and void. Whether she was in sound health was a matter not presumptively, at least, within the knowledge of the defendant; and it had a right to require, as'a condition of Mrs. Boyle’s membership, that she should, by express warranty, take all risk as to whether she was then in sound health. We have here, then, a warranty, as distinguished from a representation; and a substantial breach of the warranty, whether affirmative of some existing fact, or promissory, material to the risk, will defeat the policy.

The distinction between a warranty and a representation is familiar, and is stated in Blumer v. Phœnix Ins. Co. 45 Wis. 622; Baumgart v. Modern Woodmen, 85 Wis. 546. A warranty, it is held, “ need not be material to the risk, for, whether material or not, its falsity or untruthfulness will ■bar the assured of any recovery on the contract, because the warranty itself is an implied stipulation that the thing warranted- is material.” Beach, Ins. § 459, and cases cited in note; Jeffries v. Life Ins. Co. 22 Wall. 54-56; Dwight v. Germania L. Ins. Co. 103 N. Y. 341. It is not important that the party making the warranty really believes in its entire truth; if it be false, it avoids the contract. Clemans v. Supreme Assembly R. S. G. F. 131 N. Y. 485. “ Sound health,” as used with reference to an application for life insurance, has been defined to mean a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system seriously. The word “ serious ” is not generally used to signify dangerous, but rather to define a grave, important, or weighty trouble. May, Ins. § 295; Brown v. Metropolitan L. Ins. Co. 65 Mich. 306. The present case is not really distinguishable from Baumgart v. Modern Woodmen, supra, where a stipulation in an application for membership in a benefit society, stating that the applicant had never had a certain disease, was held to be a warranty, and that, as it Avas shown that he in fact had such disease, it was held to be a breach of the warranty, although he never knew it and his death resulted from other causes. The plaintiffs’ counsel relied upon the case of Knights of Pythias v. Rosenfeld, 92 Tenn. 508, where the language used in the contract was regarded as a representation, and not a warranty, and such was the case of Illinois Masons’ B. Soc. v. Winthrop, 85 Ill. 537. The case of Plumb v. Penn Mut. L. Ins. Co. (Mich.), 65 N. W. Rep. 611, was where the statement that the applicant was “ of sound health ” was considered a warranty, and it was held that it was a question for the jury whether the insured was in good health when the policy was delivered. The case of Moulor v. Am. L. Ins. Co. 111 U. S. 335, is distinguishable from the present case, and was decided on the ground that where the policy in question had been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant’s statements to be a condition precedent to any binding contract, the court should lean against that construction which imposed upon the assured the# obligations of a warranty, and that, in the-absence of explicit stipulations requiring such an interpretation, it should not be inferred that the assured took the-policy with the understanding that it should be void if at any time in the past he was, whether conscious of the fact or not, afflicted with the diseases, or any one of them, specified in the questions propounded by the company, and that such a construction of the contract should be avoided, unless clearly demanded by the established rules governing the interpretation of written instruments. That case does not hold that where, as in this case, a clear and explicit representation of then existing good health was made, the parties may not contract upon the faith of it, and make the truth of the statements a condition of the validity of the certificate, so that that question shall be at the risk of the assured. This we hold the parties did in this case, and their right to make such a contract cannot be denied. Jeffries v. Life Ins. Co. 22 Wall. 47; Ætna L. Ins. Co. v. France, 91 U. S. 510. In this case the statement in the application and in the certificate or policy, as will be seen, stated an express warranty. The evidence is quite sufficient to support the findings, and to warrant a verdict that Mrs. Boyle had a serious disease at the time she made her application, that had been of a chronic character for a year, though, as it is found, she was not conscious of the fact. For these reasons, therefore, judgment was rightly given in favor of the defendant, unless the evidence of the medical witnesses was improperly received.

2. The question as to the admissibility of the evidence of the physicians, against the objection of the beneficiaries of the certificate, claiming under Mrs. Boyle, the deceased, is not one free from difficulty. There can be no question but that the information they severally acquired, and which en•abled them to give their testimony, was acquired in attending Mrs.'Boyle as a patient, and that it was necessary to enable them to advise her and to prescribe for hqr as physicians. Was this information privileged, as to her, under N. S. •sec. 4015, which provides that “ no person duly authorized to practice physic or surgery shall be compelled to disclose any information which he may have acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such patient-as a physician, or to do any act for him as a surgeon” ? By the common law, information thus obtained by a physician or surgeon was not privileged, but he was at liberty to ■disclose it, either in or out of court, whatever effect such disclosure would have upon the rights, reputation, or feelings of his patient. The contention in favor of the admissibility of the evidence is that the use of the word “ compelled ” in the section shows that the information thus acquired is not privileged from disclosure as to the patient, whom such ¡a disclosure may most seriously affect, but is privileged only as to the physician or surgeon, and that he may, at his option, disclose it in court, when all the injurious details may be publicly elicited under oath, or he may refuse to do so, in which event only the information is to be privileged, so that its disclosure will not be “ compelled.” It is argued that this conclusion is strongly supported by secs. 4074 and 4076, in relation to a confession made to a clergyman or other minister, or in respect to communications made by a client to an attorney or counselor at law, or his advice given thereon, in the course of his professional employment. In the above cases the provision is that the clergyman, etc., or the attorney “shall not be allowed to disclose” such confession, ■communication, etc., not that either “ shall not be compelled to disclose,” etc.

Statutory provisions on the subject of privileged information thus acquired exist in very many, if not a majority, of the states; but they are all, as far as we have been able to discover, to the effect that the person acquiring the information “ shall not be allowed to disclose ” it as a witness, with the exception of the provision in respect to physicians and surgeons in this state, which was adopted in the territorial statute of 1839 (page 249, § 71), and has .been in force ever since (R. S. 1849, ch. 98, § 75; R. S. 1858, ch. 137, sec. 80). The statute of Arkansas, enacted about a year prior to the territorial statute of 1839, from which it may have been borrowed, is in substance in the same terms. It was somewhat considered in Collins v. Mack, 31 Ark. 685, but the decision has no decisive bearing. There was no provision in the statutes of 1839 or of 1849 or of 1858, in respect to information or disclosures to clergymen or attorneys, but these were incorporated in the.revision of 1878, and it appears from the note of the revisers that sections 4074 and 4076, in respect to communications to clergymen and to attorneys, were taken from sections 833 and 835 of the New York Code of 1877; hence the diversity of phraseology in the section in relation to physicians is much less significant, having occurred from revision, than it otherwise would be. Under statutes providing that a professional witness “ shall ■not be allowed to disclose ” information so acquired, it has been held in a great number of cases, and with entire uniformity so far as we have been able to discover, that the privilege is that of the patient, client, etc., and the information or disclosure cannot be given in evidence against him, or persons claiming under him, unless waived. “ After one has gone to his grave, the living are not permitted to impair his fame or disgrace his memory by dragging to light communications and disclosures made under the seal of the statute.” Westover v. Ætna L. Ins. Co. 99 N. Y. 56-60; Grattan v. Metropolitan L. Ins. Co. 80 N. Y. 282; Edington v. Mut. L. Ins. Co. 67 N. Y. 185. The disclosure by a physician of information acquired in his professional character, in attending on a patient, where not made in the course of bis professional, duty, is a plain violation of professional propriety, but the law does not prohibit such disclosure in his general intercourse. The statute relates only to his giving testimony in court in relation to information thus acquired,, and it should receive, we think, a liberal interpretation, in order to carry out its evident beneficial purposes. It provides that the physician shall not be compelled to disclose any information, etc., acquired in his confidential relations with his-patient. Eor whose benefit was this provision intended?' Clearly, for the benefit of the patient, whose interests, reputation, and sensibilities may be injured and grossly outraged by its disclosure. The fact that the physician acquired the information in order to prescribe for or treat the patient cannot affect the physician in the least degree unfavorably, nor that he should be compelled to disclose as a witness the information'or knowledge thus acquired. The-object of the section, therefore, was to protect the patient,, to whom protection was so important, and not the physician, to whom it was quite unimportant, from the consequences, of such disclosure, and shows that the provision that the-physician shall not be compelled to make the disclosure as a witness renders the statement of the patient privileged as-to him, and that this was within the intention of the makers of the statute clearly implied from its language, and that it should not be disclosed by the physician without his consent. In U. S. v. Babbit, 1 Black, 55, it was held that “ What is implied in a statute, pleading, contract, or will is as much a part of it as what is expressed.” Board of Sup'rs of Wood Co. v. Lackawana I. & C. Co. 93 U. S. 624; Rogers v. Kneeland, 10 Wend. 250. “And a thing within the intention of the makers of the statute is as much within the statute as if it were within the letter.” People ex rel. Atty. Gen. v. Utica Ins. Co. 15 Johns. 379; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 300. In Harrington v. Smith, 28 Wis. 43, it, was held that “ The true rule for the construction of statutes is to look to the whole and every part of the statute, and the apparent intention derived from the whole, to the subject matter, to the effects and consequences, and the reason and spirit of the law, and thus to ascertain the true meaning of the legislature, though the meaning so ascertained may sometimes conflict with the, literal sense of the words.” Within these rules, we think that it is a clear and justifiable inference from the section under consideration, and the cause and apparent necessity of making the statute, that the information of the physician, so acquired, is privileged' as to the patient, and that the physician can neither be compelled nor allowed to disclose it, as a witness, against the will or without the consent of the patient. This interpretation gives the law the beneficial effect it was evidently designed to have, while by the literal meaning of its language it would be rendered of little or no practical effect. We think that the court erred in admitting the testimony of the physicians thus objected to.

By the Gourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

NewmaN, J.

The difficulty of construction which Mr. Justice PinNey mentions does not appear until it is attempted to put upon the statute a meaning not found in its words. No person will assert that the words of sec. 4075, R. S., in their natural and grammatical sense, import what the majority of the court hold that the legislature intended to declare. The court have put into the statute a thought not found there. Something has been added which the words do not express, and which the legislature has not declared. The words “allowed” and “compelled” are not equivalents, but are words of radically different force and meaning. Ordinarily, the plain grammatical sense and meaning of the words of the statute is to be deemed the law de-dared by it. The purpose of the interpretation of a statute is to find out what the legislature intended by the words used. Where the words used are plain and unambiguous, the thought which they express is the law. The words of this statute are plain and unambiguous. They have but a single meaning, and that is plain and incapable of being misunderstood. They plainly import, in their ordinary and grammatical sense, that, while the physician may be permitted to disclose information which he has obtained through his professional relations to a patient, he shall not be compelled to do so. No other meaning can be legitimately drawn from them. This fundamental rule of interpretation is stated by JohnsoN, J., in Newell v. People ex rel. Phelps, 7 N. Y. 9, 97, as follows: “ Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing we are to seek is the -thought which it expresses. To ascertain this, the first resort, in all cases, is to the natural signification of the words employed, in the order and grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning, apparent upon the face of the instrument, is the one which, alone, we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have the right to add to or to take away from that meaning.” This rule is quoted by Judge Cooley in Cooley, Const. Lim. (6th ed.), 71. It has often been declared by this court (Ogden v. Glidden, 9 Wis. 46, 52; Battis v. Hamlin, 22 Wis. 669; Brightman v. Kirner, 22 Wis. 54; Mundt v. S. & F. du L. R. Co. 31 Wis. 451, 457; Boland v. Gillett, 44 Wis. 329; Gowan v. Hanson, 55 Wis. 341; Gilbert v. Dutruit, 91 Wis. 661; Suth. St. Const. §§ 236-238, 258, 259), and is now, at least, elementary. As stated by Mr. Justice Maeshall in Gilbert v. Dutruit, supra, quoting Yattel: “ It is not allowable to interpret what has no need of interpretation. "When the meaning is evident, and leads to no absurd conclusions, there can be no reason for refusing to admit the meaning which the words naturally present. To go elsewhere in search of conjecture in order to restrict or extend the act would be but an attempt to elude it. Such a method, if once admitted, would be exceedingly dangerous, for there would be no law, however definite and precise in its language, which might not, by interpretation, be rendered useless.” The decision in this case is an entire departure from the rule. There is no evidence in the statute itself, or outside of it, or in the context, of a purpose variant from the obvious meaning of the words, but, on the contrary, rather, that the words were chosen with care and precision, to make the intent plain. This is always to be presumed, but the context, so to speak, and the history of this statute, re-enforce this presumption. This statute (sec. 4075) is found between two sections which are in pari materia with it,— the privilege of confessions to clergymen (sec. 4074), and the privilege of communications to attorneys at law (sec. 4076),— in both of which the declaration is that they “ shall not be allowed to disclose,” while this is that they “ shall not be compelled to disclose.” This section was adopted from New York ip 1839. It is found in the Eevised Statutes of that state of 1829, as sec. 73, p. 406. It was adopted here, with the change of but one word. The words of the New York statute were, “No physician . . . shall be allowed to disclose; ” enacted here, “No physician . . . shall be compelled to disclose.” The change is palpable, and the purpose evident. That the legislature did not intend to adopt the New York statute unchanged, is manifest. That it did not intend the statute, as adopted, to be of the same scope and effect as the New York statute, must be equally manifest. Identity of effect can be produced only by a forced construction. Legitimate interpretation cannot produce it. The statute is interpreted as if it read: “No physician . . . shall be allowed to disclose ... if the patient or his representatives object.” Can it be asserted that nothing has been added to the statute by construction? No similar statute existed in Michigan previous to the separation. The New York statute was enacted verbatim there in 1846. This statute made an appreciable change and advance from the law as it was before its enactment. Before the enactment ’ of this statute, at common law, there was no privilege to the knowledge of physicians, acquired through professional relations. They could be compelled to disclose their information. It was a distinct change and advance when they could no longer be compelled to disclose such information. Statutes which change the common law as it existed at the time of their passage are held to change the common law only so far as the clear intent of the language employed absolutely requires. Fitzgerald v. Quann, 109 N. Y. 441; Tompkins v. Hunter, 149 N. Y. 117; Suth. St. Const. §§ 139, 290, 400. “ It is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced.” Farrall v. Shea, 66 Wis. 561, 566. So it seems clear that that is as far as the legislature intended to go in that direction. It is, indeed, sometimes permissible to construe statutes contrary to the natural grammatical meaning of the words, to advance an evident intention; but it can never be permissible to construe words against, nor to add to, their natural meaning, in order to carry out some supposed policy of the legislature, or to conform it to the court’s ideal. That is to legislate. Gowan v. Hanson, supra. It will hardly be denied that the statute Ras been improved in the process of construction. Yet it is wiser to let the legislature make the statute law. It is better if the profession, at least, can recognize the law when it is read upon the statute page. This statute should be left as the legislature made it. The evidence was properly received. The physicians were not compelled to disclose. The judgment of the circuit court should be affirmed.