Opinion
May 17, 1945.
Action by Lilly L. Levy and others against the Mutual Life Insurance Company of New York to recover on a policy of life insurance of which plaintiffs were beneficiaries and payment of which was refused on ground that assured in her application misrepresented her physical condition, and wherein defendant sought rescission of policy on that ground. On defendant's motion for an order directing issuance of a commission to take the testimony of physicians in Georgia under oath on interrogatories.
Motion granted.
Benjamin C. Ribman, of New York City, for plaintiffs.
Louis W. Dawson, of New York City, for defendant.
This action is brought by plaintiffs, beneficiaries under a policy of insurance, to recover the sum of $5,000. The policy was issued to the assured on August 19, 1943. The assured died on September 11, 1943. Payment was refused by defendant on the theory that the assured, in her application, misrepresented her physical condition. Defendant also asks for a rescission of the policy on the same ground.
Defendant seeks an order directing the issuance of a commission to take testimony of the physicians in Atlanta, Georgia, under oath on interrogatories. The matters upon which the doctors are sought to be examined are "all facts concerning said consultations by said Lottie Linguvic of said doctors and said doctors' treatment, diagnosis and prescriptions, and any other pertinent matters pertaining to the treatment and diagnosis for said Lottie Linguvic and all the facts regarding said consultations, treatment and diagnosis."
Plaintiffs oppose on the ground that the matters sought are privileged communications and may not be disclosed in the absence of a waiver. Civil Practice Act, §§ 352, 354. Defendant argues the policy constitutes a Georgia contract and the laws of the State of Georgia at the time of delivery of the policy must govern and control the action. The question is — What law shall govern?
[1-4] The assured was a resident of the State of Georgia. The application for insurance was delivered in that State by the soliciting agent of the defendant. At the time of the delivery the agent received payment of the initial premium. The application had the following statement: "* * * The policy shall not take effect unless and until the policy is delivered to the insured and the first premium is paid during the insured's continuance in good health. * * *" (Italics furnished.)
The pleadings allege that the contract was consummated in the State of Georgia.
Under such circumstances, this court has concluded that the contract was completed and consummated in the State of Georgia. Williston on Contracts, Rev.Ed., Vol. 1, § 97, pp. 309-310; United States Mortgage Trust Co. v. Ruggles, 258 N.Y. 32, 179 N.E. 250, 79 A.L.R. 802; Swing v. Dayton, 3d Dept., 124 App.Div. 58, 108 N.Y.S. 155, affirmed 196 N.Y. 503, 89 N.E. 1113; Swing v. Wanamaker, 1st Dept., 139 App.Div. 627, 124 N.Y.S. 231; Meyer v. Supreme Lodge K. of P., 178 N.Y. 63, 70 N.E. 111, 64 L.R.A. 839 (see Jones v. Metropolitan Life Ins. Co., 158 Misc. 466, 286 N.Y.S. 4, contra). Since the laws of the State of Georgia are applicable the court decides that such examination is proper. It appears deceased signed the following waiver: "I waive for myself and for anyone claiming an interest in any policy issued hereunder, all provisions of law forbidding any physician or other person who has attended or examined me from disclosing any knowledge or information which he thereby acquired."
The moving party cites a number of cases of the State of Georgia which hold that there is no privilege between physicians and patients and that the physician may be compelled to answer. This court has examined these authorities in addition to the Georgia statute. There is no privilege statute between physicians and patients in that State, and accordingly the common law must prevail. See Corpus Juris, vol. 70, § 588. As the assured was at liberty to waive the privilege which the law afforded her, it is immaterial whether she did so by calling the witness herself, or, as in this case, by a clause contained in the contract of insurance. That waiver is binding on all who claim under the contract.
For the aforesaid reasons the motion is granted. In the exercise of discretion the court directs that such examination be an open commission. Upon settlement of the order the Court will receive counsel's suggestions on the question of the costs thereof.