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"A. I diagnosed the case as ptomaine poisoning.
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"Q. Doctor, tell the symptoms of ptomaine poisoning as briefly as you can?
"A. Severe pains in the abdomen, temperature, nausea, vomiting, possibly chills, headache; the pains are of a severe lancinating character. Diarrhea is not necessarily one of the symptoms."
This was objected to for the reason that the physician is not permitted to disclose any knowledge he obtained by reason of the examination of Mr. Johnson, and that it is in violation of our statute governing the rules of evidence. Such information would be privileged, and under the statute he could not disclose it.
"The Court: The question is whether the beneficiary can waive the privilege.
"The court overruled the objection and defendant excepted."
We think the ruling of the court was correct. Grand Rapids, etc., R. Co. v. Martin, 41 Mich. 667 (3 N. W. 173); Scripps v. Foster, 41 Mich. 742 (3 N. W. 216); Fraser v. Jennison, 42 Mich. 206 (3 N. W. 882); Briesenmeister v. Knights, 81 Mich. 525 (45 N. W. 977); Slater v. Sorge, 166 Mich. 173 (131 N. W. 565), and In re Oldenberg's Estate, 177 Mich. 150 (142 N. W. 1076).
(b) This testimony relates to what was said and done in an interview in the presence of the mother, the sister, and another between Dr. Hanson, who was produced as a witness by defendant, and the deceased. It was offered as rebuttal testimony, Dr. Hanson having testified that at the request of the company he made an examination of the deceased and made a report to the company, which report was allowed in evidence, as was a letter written by the company following the report, to the plaintiff, in which it was stated: "Your physician and our physician have both advised me that Mr. Johnson's disability was
occasioned by tuberculosis." This testimony was competent as rebuttal testimony.
It is insisted there is no liability because there was no payment of premiums. The policy commences as follows: "Railroad Employees' Installment, Accident and Health Policy." In the general provisions of the policy appears the following:
"Article 11. Section A. If the first payment under the order on the paymaster of the assured's employer bearing even date and number with this policy is made at the time specified in said order for said payment this policy shall continue in force for 60 days; if the said payment is not made at the said time this policy shall immediately thereupon terminate without any action on the part of the company and the assured shall immediately pay to the company the earned premium for the time the policy shall have been in force."
"Section C. If any one of the payments specified in said order subsequent to the first payment is not made at the time specified in said order for any such payment, this policy shall terminate at the end of the period for which the last payment under said order was actually made, without any action on the part of the company."
"Article 14. This policy is issued in consideration of the premium and of the statements which are set forth hereon in the Schedule of Warranties and which the assured makes and warrants to be true by the acceptance of this policy."
In the schedule of warranties appears the following:
"I am employed by the Pullman Company, whose business is Pullman Company, located at Central district, city of Chicago, State of Illinois. My occupation is conductor. The duties of my occupation are fully described as follows: Conductor. My monthly wages are $70. The order on the paymaster referred to in this policy provides for the following_payments to be made from my wages as follows: First payment of $6.50, from month of October, 1911. Second payment of $6.50 from month of November, 1911.
Third payment of $6.50 from month of December, 1911. Fourth payment of $6.50, from month of January, 1911."
The following stipulation was made at the trial: That Lawrence Johnson left the employ of the Pullman Car Company on or about October 23, 1911, and came to Port Huron, where he remained until his death, November 21, 1911. That under the terms of the policy in issue the first installment of premium to be paid thereon, to wit, the sum of $6.50, would have been payable out of his pay for the month of October, which according to the Pullman system would not be payable until the 15th of November. That on or before November 15th, the defendant received notice from the Pullman Company that Johnson had left its employ. At the time of leaving the employment of the Pullman Company there were moneys belonging to Johnson for his wages as Pullman conductor during October $29.35. This money remained in the hands of the Pullman Company until January 4, 1912, when a check for the sum was sent to Mrs. Catherine Johnson, the plaintiff.
The case is within Lyon v. Insurance Co., 55 Mich. 141 (20 N. W. 829, 54 Am. Rep. 354), and is not in conflict with the majority opinion in Geddes v. Relief Association, 178 Mich. 486 (144 N. W. 828). See, also, 1 Am. & Eng. Enc. of Law, p. 289.
It is said death as the result of ptomaine poisoning does not create liability under this policy, counsel citing American Accident Co. v. Reigart, 92 Ky. 142 (17 S. W. 280), and Bacon v. Accident Ass'n, 123 N. Y. 304 (25 N. E. 399, 20 Am. St. Rep. 748). The first of these citations relates to the improper taking of an appeal and is not in point. The second case is distinguishable and is not controlling. The instant case is more like Paul, Adm'r, v. Insurance Co., 112 N. Y. 472 (20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758), where the liability of the company was sustain
ed. No question would be raised here, I take it, if the assured by mistake had taken carbolic acid, when he intended to take a helpful medicine. Travelers' Insurance Co. v. Dunlap, 160 Ill. 642 (43 N. E. 765, 52 Am. St. Rep. 355). Why, then, should it be said there is no liability when the assured, intending to take nourishing food, in fact took tainted food, which resulted in ptomaine poisoning and death? See Vance on Insurance, pp. 570, 576, and notes; Richards on Insurance Law, § 386, and notes; 1 Am. & Eng. Enc. of Law, p. 272, and p. 294; Freeman v. Accident Ass'n, 156 Mass. 351 (30 N. E. 1013, 17 L. R. A. 753); Jiroch v. Insurance Co., 145 Mich. 375 (108 N. W. 728).
The other assignments of error have had our attention; we think it unnecessary to discuss them.
In the instant case there is a great conflict in the testimony. Young Johnson had lived in Port Huron for a long time prior to his going to Chicago on August 14, 1911. He took out the policy of insurance September 15, 1911. His sister testified in part as follows:
"Before my brother went to Chicago he was in perfect health, was tall, an athlete; played ball as a catcher on the Independent baseball team.
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He was in perfect health all the time. never heard of his having consulted a physician nor was the subject of his having any ailment discussed in the family; never knew of his taking any medicine."
His mother, his brother, the city clerk of Port Huron, and the county clerk of St. Clair county, and others testified to substantially the same condition. We have already called attention to what Dr. Hertel observed October 21, 1911. Physicians were called on the part of the plaintiff as experts, who described ptomaine poisoning and its symptoms. These physicians, in answer to hypothetical questions which the
trial judge thought covered the history of the case, expressed the belief that young Johnson was suffering m ptomaine poisoning, and that the cause of his death was ptomaine poisoning.
"Q. From the history of the case which I read to you state whether in your opinion the cause of Lawrence Johnson's death could be attributable to pulmonary tuberculosis.
"A. Absolutely impossible. In pulmonary tuberculosis you never have vomiting; you very rarely have dysentery or diarrhea; you never have any abdominal pain. I have seen muscular contractions due to tuberculosis, but very, very seldom, and that would be in the very later stages.
"Q. Now as to the time from the beginning of the trouble until the death, what do you say about that?
"A. It is too absurd to even answer, almost. You never get pulmonary tuberculosis to kill in a month."
On the part of the defendant there was testimony tending to show that the assured died of tuberculosis. This raised a question of fact which was submitted to the jury in a charge which, when read as an entirety, presented the questions involved fairly and fully.
Judgment is affirmed.
BROOKE, C. J., and MCALVAY, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.