
    Common Pleas Court of Montgomery County.
    Marguerite Humble v. The John Hancock Life Insurance Co.
    Decided June 8, 1931.
    
      
      Irvin C. Delscamp, for plaintiff.
    
      Craighead, Cowden, Smith & Schnacke, for defendant.
   Cecil, J.

Plaintiff in this case filed a petition as the beneficiary-under a certain life insurance policy issued upon the life of Mary E. Hillyard. The petition sets forth certain terms of the policy and alleges that Mary E. Hillyard and Marguerite Humble have duly performed all the conditions of said contract on their part to be performed. The defendant filed an answer, denying the claims of the plaintiff and setting forth two additional defenses. First, that the insured, Mary E. Hillyard, was not in sound health upon the date said policy was issued as required by said policy; and, second, that the said Mary E. Hill-yard, had been attended by a physician within two years before the date of said policy for a serious disease or complaint, and had had before the date of said policy a disease of the heart and a disease of the kidneys, and that such medical attendance was not specifically waived by an endorsement on said policy and that by reason of said facts the policy was not operative.

Plaintiff filed a reply, in which she denied the allegations set forth in the defendant’s answer.

The case was tried to a jury upon the pleadings and the evidence, and a verdict was returned in favor of the plaintiff in the sum of two hundred and eighty dollars ($280) with interest at six per cent, per annum from February 8, 1929.

The defendant filed a motion for a new trial, specifying ten separate grounds for said motion. The motion for a new trial is supported by an exhaustive brief in which counsel have discussed the grounds for a motion for a new trial under five sub-divisions. We will consider this motion for a new trial in the order of the topics as briefed by counsel for defendant.

The first two objections made in behalf of the defendant are: first, the court erred In denying defendant’s motion for a directed verdict at the close of plaintiff’s case; and, second, the court erred in denying defendant’s motion for a directed verdict which was renewed at thé close of the whole case. These two propositions will be considered together.

The question involved here is with reference to burden of proof, rather than being one of directed verdict. The plaintiff made a prima facie case when she showed that the policy was issued and delivered to the insured; that the premiums were paid; and, that proper notice and demand were made upon the defendant for payment of said policy. This being the case it was incumbent upon the defendant to offer some evidence sustaining its defense. When this was done it became a question of fact for the jury to determine whether or not the insured was in sound health on the date of the policy, and whether or not she had been attended by a physician for a serious disease within two years prior to that time.

The question, therefore, is: Did the court properly charge the jury upon the burden of proof with reference to these two defenses? Counsel for the defendant in their brief claim that these provisions of the policy were conditions precedent, and that the burden of proof is, therefore, upon the plaintiff to establish by a preponderance of the evidence that these conditions have been performed. We think it is well established in this state that such conditions have been termed conditions subsequent, and as such the burden . of proof is upon the defendant.

Moody v. Insurance Company, 52 Ohio St., 12, defines conditions and fixes the rule involving burden of proof in this state. Williams, J., on page 17, defines conditions as follows:

“In an action on a policy of fire insurance the plaintiff may plead generally, as was done in this case, the due performance of all the conditions precedent, on his part, and when the allegation is controverted, the burden is undoubtedly upon him to show such performance. But we do not understand the clause of the policy in question to be a condition of that kind. The unexpired policy of fire insurance, which has been regularly issued, and remains uncancelled, must, m the absence of a showing to the contrary, be regarded as a valid and effective policy, upon which the assured is prima facie entitled to recover when the loss occurs, and the steps necessary to establish it have been taken; and hence, the conditions precedent in such a policy include only those affirmative acts on the part of the assured, the performance of which is necessary in order to perfect his right of action on the policy, such as giving ' notice and making proof of the loss, furnishing the certificate of a magistrate tohen required by the terms of the policy, 'and it may be, in some cases, other steps of a like nature. Those clauses usually contained in policies of insurance, which'provide that the policy shall become void, or its operation defeated or suspended, or the insurer relieved wholly or partially from liability, upon the happening of some event, or the doing, or omission to do some act, are not in any proper sense conditions precedent. If they may be properly called conditions, they are conditions subsequent, and matters of defense, which, together with their breach, must be pleaded by the insurer to be available as a means of defeating a recovery on the policy; and the burden of establishing the defense, if controverted, is, of course, upon the party pleading it.”

American Assurance Company v. Walter H. Early, 28 O. C. C. (N. S.), 418, follows the construction with reference to conditions as laid down by the Moody case, supra. In this case the question with reference to health arose out of a lapsed policy having been reinstated. The policy contained this provision:

“If this policy shall be revived after having lapsed, it shall not cover death from any source originating prior to the revival thereof.”

The defendant claimed' that death was caused from a source originating prior to the revival of said policy. We think the question here is analogous to the one at bar, and the court in this case places the burden upon the defendant to prove that death was caused by a source originating prior to the re-instatement of the policy.

The question we have here was involved in Insurance Company v. Zimmer, 19 O. N. P. (N. S.), 188. May, J., quoted Moody v. Insurance Company, supra, approvingly, and held that the condition with reference to sound health was not a condition precedent, and that the burden of proof was upon the defendant to prove that the insured was not in sound health on the date of the policy.

Metropolitan Insurance Company v. Hillard, 19 O. C. C. (N. S.), 78, is the only case we have found in Ohio which places the burden of proof upon the plaintiff to prove that the insured was in sound health upon the date of the policy. This case holds that the provision with reference to sound health is a condition precedent, and must be established by the plaintiff when it is raised by the defendant. This court did not cite the Moody case, supra. The court does, however, refer to the case of Metropolitan Insurance Company v. Howie, 62 Ohio St., 204, and 68 Ohio St., 614, and says:

“That the precise question for determination here is not decided in” these cases.

As the Howe cases have been cited by counsel for defendant in their brief, we have examined them and find that the court in those caes did not decide upon whom the burden of proof was placed, although the court in those cases did recognize the proposition that the plaintiff could not recover, if the jury found that the insured was not in sound health. Likewise, the court is silent upon the burden of proof in the case of Metropolitan v. Feczko, 26 Ohio App., 287.

Counsel for defendant have cited the case of Wills v. Nat’l Life & Accident Ins. Co., 27 Ohio Law Reporter 109; 28 Ohio App., 497. The court in this case recognized the proposition as charged by the court in the case at bar. On page 500, Sullivan, P. J., says:

“And from an examination of the testimony it is clear and conclusive that the burden of proof resting upon the Insurance Company is sustained.”

Again on page 507, quoting from the charge of the trial court:

“The burden of showing that he was not in good health at the time of the issuance and deliverance of those policies, is upon the Insurance Company. It is presumed under these circumstances that the insured was in good health, until it is shown to you by the evidence that he was not in good health. Now, then, if upon hearing all the evidence you determine that the defendant has shown to you by the preponderance of the evidence that Roosevelt Shelby was not in good health at the time of the delivery of these policies, then the Insurance Company should not be required to pay these policies.”

With reference to this charge, Sullivan, P. J., says on the same page:

“From an examination and an analysis of the charges above, we think the jury was intelligently and' legally instructed as to its duty upon the question of the health of the insured.”

From the authorities above quoted we are of the opinion that the burden of proof is upon the defendant to show that the insured was not in sound health upon the date of the policy.

The third objection made by counsel for defendant is that the court erred in excluding the testimony of Dr. Gilfillen. In the trial of the case it was recognized by counsel for the defendant, that the communications of the deceased to Dr. Gilfillen were privileged, Dr. Gilfillen having been the physician of the deceased. In the case of the Metropolitan Insurance Company v. Howle, 68 Ohio St., 614, the court held that the communications of the patient to the physician were privileged, but that the diagnosis of the physician, or what the physician learned from the observations independent of the communications, was not privileged. It was upon this case that the defendant based its contention.

In the case of Ausdenmoore v. Holzback, 89 Ohio St., 381, the court said:

“We hold that a communication by the patient to the physician may be not only by word of mouth, but also by exhibiting the body, or any part thereof, to the physician for his opinion, examination, or diagnosis, and that that sort of communication is quite as clearly within the statutes as a communication by word of mouth.”

Upon this authority the testimony of Dr. Gilfillen, with reference to what he learned about the deceased through his diagnosis of her, was excluded. While the court in this case did not' expressly overrule the Howie case, supra, we do not think that the ruling of the court can be distinguished upon the ground that the Howie case was an insurance case.

Counsel for the defendant have raised the further question of estoppel with reference to the testimony of the physician, citing the case of Wills v. The New York Insurance Company, supra. In this case, Sullivan, P. J., on page 505 said:

“A proper interpretation of the clause of the policy, which provides that the applicant must be in sound health, is, we think, by operation of law, a waiver of the right to claim privileged communication under the statute, and an estoppel against objection to the evidence in the trial of a case where the insured seeks to recover, because to hold otherwise would be to become a partner to the constructive fraud and the instrumentality of its perpetration.”

The question of privileged communications between patient and physician was not involved in this case. A part of the evidence offered consisted of the records of a public hospital and as such the records were public and not within the purview of privileged communications. The physician who testified was connected with a hospital which was a public institution and there was not, say the court, “that professional relationship existing under circumstances of this kind as where a patient voluntarily selects a physician and communicates to him the nature of the disease, or submits his body for examination for the purpose of having the physician or surgeon determine the character of his disease.”

The above expression is then dictum, and while' there may be some merit to the contention we are not willing at this time to nullify the privilege granted by the statute in this kind of cases.

The fourth proposition raised by the defendant in its brief is, that the court erred in excluding the testimony of the nurse. The nurse in question in this case was the private nurse of Dr. Gilfillen, and the only thing that she knew with reference to the condition of the deceased was what she learned as an assistant of the doctor through communications between the patient and the physician or diagnosis and treatment of the physician. She had no independent knowledge about the deceased’s condition. She was the agent of Dr. Gilfillen and as such we think her lips were sealed by the statute.

This case is one of first impression in this state upon this point. The statute, itself, does not grant any privilege to communications between the nurse and patient and it is so held in the Wills case, supra. The relation in that case, however, was an independent relation of a public health nurse and patient, and clearly is not the same question as is involved here. The authorities outside of this state are conflicting upon this point.

In the case of Hobbs v. Hullman, 183 Appellate Div. (N. Y.), 743, the court held that, in an action by physician to recover for services rendered to the defendant’s wife, the communications between the doctor and patient were privileged, but that the same communications between the doctor and patient were properly testified to by the doctor’s nurse who was present and heard the communications.

In the case of Southwest Metals Co. v. Gomez, 4 F., second series, 215, the court in construing the Arizona statute, with reference to privileged communications, refused to extend the privilege to a doctor’s nurse. Rudkin, J., says on page 218:

“While such statutes should be liberally construed, as between patient and physician, their necessary tendency is to prevent a full disclosure of the truth, and for that reason they are strictly construed and limited to cases falling within the principles on which they are based.”

The opposite view point is taken in the case of Culver v. Union Pac. Ry. Co., 112 Neb., 441. Quoting from the case on page 450, Letton, J., says:

“A different rule prevails where the nurse acts as one of the agents or assistants of the physician in charge. A nurse is often necessarily present at conversations between the patient and the doctor with respect to the ailment or condition of a patient, and little good would be subserved if the lips of the doctors might be sealed by the statute as to such conversations, but the .nurse or attendant might freely testify to all that was said and everything that was done. The purpose of the law is to protect the right of privacy, and while its scope should not be unduly extended, its very intention might be completely thwarted by the admission of testimony from this class of witnesses. In such case, if she received or heard confidential communications from a patient, ‘necessary and proper to enable him (the physician) to discharge the functions of his office according to the usual course of practice,” then the privilege extended to the physician extends equally to the nurse.”

We have not reviewed all of the decisions, on this point, but the above quotations indicate the conflicting views upon this subject. We consider the Nebraska case to be the better reasoned opinion. Most modern doctors are assisted in their offices by nurses, a practice which should be encouraged rather than discouraged, and the nurse becomes the agent of' the physician. If the privilege granted by the statute is to be effective, it must extend to the nurse in her capacity as an assistant to the physician so that she can not disclose what she learns in such capacity when the physician, himself, can not disclose it.

The fifth objection raised by the defendant in its brief is, that the court erred in denying the special request made by the defendant at the close of the general charge, to supplement the general charge by defining the term, “sound health.” No special charge upon this subject was presented to the court, with the request that it be given before argument to the jury as a special instruction, nor was any request made at the close of the court’s general instruction to give any specific charge upon this subject. We think such a charge might well have been given, but we do not consider its omission to have been prejudicial to the rights of the defendant.

In the Howle case, 62 Ohio St., supra, such a request was presented to the court and requested as a special charge and refused. This, the court held to be error. The court must give a charge which is presented by-counsel as a special charge to the jury before argument, if it' contains a correct statement of the law, which is applicable to the case before the court.

In the case at bar, with the testimony of the physician and nurse excluded, there is almost a complete lack of any testimony upon the part of the defendant, that the deceased was not in sound health on the date of the policy, except some testimony to the effect that the deceased had asthma. The defendant might have offered some expert testimony to show that asthma was a serious disease, or might have serious consequences, but it is a common ailment and one that would not generally be considered as a serious disease, and in fact was not one of the two serious diseases which the defendant pleaded in its answer.

A definition of sound health recognized by the Supreme Court of Ohio is as follows:

“Sound health means that state of health which is free from any disease or ailment that affects the general healthfulness of the system seriously; not a mere indisposition.”

We fail to see how such a definition considered in the light of the testimony that was before the jury could in any way have been prejudicial to the defendant. In fact, it seems to us that it might have had the effect of excusing in the mind of the jury the complaint, which the plaintiff’s own testimony showed the deceased was suffering from, that of asthma.

The motion for a new trial will be overruled.  