Appellant brought this action against appellee in the circuit court of Jones County on an insurance policy to recover certain benefits therein provided based upon alleged total and permanent disability. The particular provision of the policy upon which the suit was based follows: "Any employee insured under this plan who shall become wholly and permanently disabled while in our employ before reaching the age of 60, either by accidental injury or disease, and is thereby permanently, continuously and wholly prevented from pursuing any and all gainful occupation, will be regarded as a claimant by the Metropolitan Life Insurance Company. Six months after the receipt of due proof of such disablement, the Insurance Company will begin making payments of the amount of insurance under any one of the following plans at the option of the person insured."
There was a verdict and judgment for appellee, from which judgment appellant prosecutes this appeal.
Appellant was an employee of the Gilchrist-Fordney Company, which company held a group insurance policy in appellee company for the benefit of its employees. Under the terms of the policy certificates of insurance were required to be and were issued to the employees. These certificates contained among other provisions the one above set out. The Gilchrist-Fordney Company went out of business the latter part of July, 1937. Appellant was at that time and had been for some years before one of its employees. He undertook to show that while so employed and between the first day of May, 1937, and the time his employer went out of business, he became as the result of sickness totally and permanently disabled, being at the time under sixty years. There
was substantial evidence to establish appellant's case. On the other hand, there was very substantial and convincing evidence to disprove it. The issues of fact were for the jury. The Court therefore committed no error in refusing a directed verdict for appellant or in overruling his motion for a new trial, based upon the ground of want of sufficient evidence.
The only serious question in the case arose out of the following statement of facts: During the period appellant claims to have become totally and permanently disabled, he was examined once or twice by Dr. Barnes and also by Dr. Waldrup. He was examined once afterwards by Dr. Butler for the purposes of this suit. On the trial he used Drs. Barnes and Butler as witnesses, and although Dr. Waldrup was accessible, failed to introduce him. Dr. Barnes testified that appellant was totally and permanently disabled when he examined him, and so did Dr. Butler. On cross-examination Dr. Barnes admitted that he was a narcotic criminal convict, and Dr. Butler admitted that he was employed and paid by appellant to testify in his behalf, and that he was so retained by several co-employees of appellant who had suits under the same group policy. In that state of case the court, at the instance of appellee, instructed the jury that under the law it could not introduce as a witness "any doctor to testify to anything learned by him of the plaintiff's physical condition while the relation of physician and patient existed between him and plaintiff", and further instructed the jury that the fact that appellant failed to introduce as a witness one of his physicians, Dr. Waldrup, would justify the jury in inferring that his testimony would have been unfavorable to the appellant. It is assigned and argued that the giving of such an instruction was error and harmful to appellant with the jury, that in effect it infringes upon our privileged communications statute, Section 1536 of the Code of 1930, which is in this language: "Communications privileged. — All communications made to a physician
or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient."
In several states having statutes on the privilege of communications to physicians similar to our statute, it has been held that no unfavorable inference will be permitted to be drawn against a party who fails to offer his physician. These decisions seem to place their main reliance upon the English case Wentworth v. Lloyd, 10 House Lords 589, which was a case involving the privilege of attorney and client. Most of the other cases relied on in support of the line of decisions first mentioned draw their analogies from cases involving the relationship of husband and wife, among which is our own case Johnson v. State, 63 Miss. 313, 316.
In the latter connection it is interesting to note that in nearly all these cases, upholding the rule as first stated, the decision in Knowles v. People, 15 Mich. 408, which was a husband and wife case, is among the first mentioned, and certainly none of the annotations omit that case. Yet, fifty years thereafter, in Griggs v. Saginaw, etc. R. Co., 196 Mich. 258, 162 N.W. 960, the Court held that on the failure of the plaintiff to introduce one of his physicians, when two had been in attendance upon him, the jury may consider that the testimony of the withheld physician would have been contrary to the claim of the plaintiff.
It is interesting to note also that one of the cases seldom omitted from the opinions or annotations in support of the rule against the instruction in question is Arnold v. Maryville, 110 Mo. App. 254, 85 S.W. 107, yet in the same jurisdiction, thirty years later, in Waeckerly v. Colonial Baking Co., 228 Mo. App. 1185, 67 S.W.2d 779, it was held not erroneous to allow comment before the jury on the failure of the plaintiff to introduce two of her physicians.
We shall not undertake to pursue further the division among the authorities in the other states on the question; it is enough that there is a square conflict in our own decisions: Hobson v. McLeod, 165 Miss. 853, 147 So. 778, on one side, and Beard v. Williams, 172 Miss. 880, 161 So. 750, and Robinson v. Haydel,177 Miss. 233, 171 So. 7, on the other. The question now is which will we follow for the future, and since the majority has determined that we will adhere to the two cases last cited, we will add only briefly some of the considerations which have led us to that conclusion.
As already mentioned the cases which uphold the opposition to the instruction in question largely base their analogies upon the privilege as between attorney and client and between husband and wife. The relation between attorney and client and its privileges are such that courts could not function nor justice be administered in any acceptable way other than that the privilege be placed wholly above any adverse comment or inference from it; and the relationship of husband and wife lies at the very foundations of civil society; but our jurisprudence attained to its present heights and our civil society reached its flower in a hundred years of development in this state before the physicians' privilege statute ever became a part of our law.
The two purposes which were in view in the enactment of that statute have often been adverted to in our decisions, and we have broadly and sympathetically upheld the statute.
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Appellant brought this action against appellee in the circuit court of Jones County on an insurance policy to recover certain benefits therein provided based upon alleged total and permanent disability. The particular provision of the policy upon which the suit was based follows: "Any employee insured under this plan who shall become wholly and permanently disabled while in our employ before reaching the age of 60, either by accidental injury or disease, and is thereby permanently, continuously and wholly prevented from pursuing any and all gainful occupation, will be regarded as a claimant by the Metropolitan Life Insurance Company. Six months after the receipt of due proof of such disablement, the Insurance Company will begin making payments of the amount of insurance under any one of the following plans at the option of the person insured."
There was a verdict and judgment for appellee, from which judgment appellant prosecutes this appeal.
Appellant was an employee of the Gilchrist-Fordney Company, which company held a group insurance policy in appellee company for the benefit of its employees. Under the terms of the policy certificates of insurance were required to be and were issued to the employees. These certificates contained among other provisions the one above set out. The Gilchrist-Fordney Company went out of business the latter part of July, 1937. Appellant was at that time and had been for some years before one of its employees. He undertook to show that while so employed and between the first day of May, 1937, and the time his employer went out of business, he became as the result of sickness totally and permanently disabled, being at the time under sixty years. There
was substantial evidence to establish appellant's case. On the other hand, there was very substantial and convincing evidence to disprove it. The issues of fact were for the jury. The Court therefore committed no error in refusing a directed verdict for appellant or in overruling his motion for a new trial, based upon the ground of want of sufficient evidence.
The only serious question in the case arose out of the following statement of facts: During the period appellant claims to have become totally and permanently disabled, he was examined once or twice by Dr. Barnes and also by Dr. Waldrup. He was examined once afterwards by Dr. Butler for the purposes of this suit. On the trial he used Drs. Barnes and Butler as witnesses, and although Dr. Waldrup was accessible, failed to introduce him. Dr. Barnes testified that appellant was totally and permanently disabled when he examined him, and so did Dr. Butler. On cross-examination Dr. Barnes admitted that he was a narcotic criminal convict, and Dr. Butler admitted that he was employed and paid by appellant to testify in his behalf, and that he was so retained by several co-employees of appellant who had suits under the same group policy. In that state of case the court, at the instance of appellee, instructed the jury that under the law it could not introduce as a witness "any doctor to testify to anything learned by him of the plaintiff's physical condition while the relation of physician and patient existed between him and plaintiff", and further instructed the jury that the fact that appellant failed to introduce as a witness one of his physicians, Dr. Waldrup, would justify the jury in inferring that his testimony would have been unfavorable to the appellant. It is assigned and argued that the giving of such an instruction was error and harmful to appellant with the jury, that in effect it infringes upon our privileged communications statute, Section 1536 of the Code of 1930, which is in this language: "Communications privileged. — All communications made to a physician
or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient."
In several states having statutes on the privilege of communications to physicians similar to our statute, it has been held that no unfavorable inference will be permitted to be drawn against a party who fails to offer his physician. These decisions seem to place their main reliance upon the English case Wentworth v. Lloyd, 10 House Lords 589, which was a case involving the privilege of attorney and client. Most of the other cases relied on in support of the line of decisions first mentioned draw their analogies from cases involving the relationship of husband and wife, among which is our own case Johnson v. State, 63 Miss. 313, 316.
In the latter connection it is interesting to note that in nearly all these cases, upholding the rule as first stated, the decision in Knowles v. People, 15 Mich. 408, which was a husband and wife case, is among the first mentioned, and certainly none of the annotations omit that case. Yet, fifty years thereafter, in Griggs v. Saginaw, etc. R. Co., 196 Mich. 258, 162 N.W. 960, the Court held that on the failure of the plaintiff to introduce one of his physicians, when two had been in attendance upon him, the jury may consider that the testimony of the withheld physician would have been contrary to the claim of the plaintiff.
It is interesting to note also that one of the cases seldom omitted from the opinions or annotations in support of the rule against the instruction in question is Arnold v. Maryville, 110 Mo. App. 254, 85 S.W. 107, yet in the same jurisdiction, thirty years later, in Waeckerly v. Colonial Baking Co., 228 Mo. App. 1185, 67 S.W.2d 779, it was held not erroneous to allow comment before the jury on the failure of the plaintiff to introduce two of her physicians.
We shall not undertake to pursue further the division among the authorities in the other states on the question; it is enough that there is a square conflict in our own decisions: Hobson v. McLeod, 165 Miss. 853, 147 So. 778, on one side, and Beard v. Williams, 172 Miss. 880, 161 So. 750, and Robinson v. Haydel,177 Miss. 233, 171 So. 7, on the other. The question now is which will we follow for the future, and since the majority has determined that we will adhere to the two cases last cited, we will add only briefly some of the considerations which have led us to that conclusion.
As already mentioned the cases which uphold the opposition to the instruction in question largely base their analogies upon the privilege as between attorney and client and between husband and wife. The relation between attorney and client and its privileges are such that courts could not function nor justice be administered in any acceptable way other than that the privilege be placed wholly above any adverse comment or inference from it; and the relationship of husband and wife lies at the very foundations of civil society; but our jurisprudence attained to its present heights and our civil society reached its flower in a hundred years of development in this state before the physicians' privilege statute ever became a part of our law.
The two purposes which were in view in the enactment of that statute have often been adverted to in our decisions, and we have broadly and sympathetically upheld the statute. But it is the duty of courts, as time progresses, to closely observe the uses to which any procedural rule, whether of the common law or of the statutes, has been put, and to so control those uses that while the terms of the rule or statute shall be fairly fulfilled, it shall be put to no use for the ends of injustice, or to the defeat of real justice, when such use can at least be minimized by resort to other established procedural rules, and when such resort works no intrusion upon that which is essentially fundamental in the judicial
process or in the preservation of the foundations of society itself. Compare Mitchell v. State, 179 Miss. 814, 824, 825,176 So. 743, 121 A.L.R. 258.
It is to be supposed that any honest majority of our legislature ever contemplated that this statute could be put to any such a use as that a party claiming to be suffering with a particular malady or injury could, for the purposes of lawsuit, bring physician after physician to observe and examine him, and when from the number he had found one, who by his incompetency or want of moral sensibilities, or for other reasons, was willing to grossly overstate or misstate the malady or injury, he could use only that one, and thereby render the opponent party utterly helpless, even to the extent of forbidding the comment or inference which the questioned instruction here presents? We decline any such a supposition until the legislature shall enact a statute so explicit in its terms as to expressly exclude that declination. How far may a statute of this kind go and not come into conflict with the constitutional requirements of due process? And the unjust uses to which the statute has been attempted to be put, with the claim at the same time that the opposite party was rendered utterly helpless, is aptly illustrated by the two cases, Beard v. Williams and Robinson v. Haydel, supra.
In the cases upholding the contrary rule, when seeking to extend their argument beyond the analogies of the relationship of attorney and client or husband and wife, which as we have briefly pointed out are not truly analogous, they proceed upon the assertion that since the law has given the patient the right to decline to use his physician as a witness, and to decline to allow the opposite party to use him, the allowance of any adverse inference or comment thereon would be in that measure to place a burden on him because of the exercise of that right — that the right would be given him on the one hand and to some extent taken away or infringed on the other.
The right is given to any party litigant to introduce witnesses of his own choosing, and he has the right to decline to use as a witness any person whom he does not desire to use. This is a right given to him by the common law and is as complete as had it been given by statute. It is a general right given to every litigant, not alone to patients. With equal reason, therefore, it could be said that comment or an instruction to the effect that an unfavorable inference may be drawn from the failure of a party to introduce a material witness accessible to him and not to his adversary, would be an infringement upon his right to put on whatever witness or witnesses he should choose, and to decline to put on others, but such argument if allowed would submerge the rule, take it out of the books, in its entirety as laid down in such cases as Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; Anderson v. Cumberland Tel. Co., 86 Miss. 341, 38 So. 786, and Southern Bell Tel. Co. v. Quick, 167 Miss. 438, 149 So. 107, a rule which has its basis in the natural and normal processes of the human mind, in its logical search for the probabilities of the truth.
We hold therefore that there was no error in the granting of the questioned instruction; and we think the other errors assigned, but not heretofore mentioned, are not of sufficient merit to call for discussion by the Court. Affirmed.