Opinion
November 20, 1942.
Action by Dora Wexler against the Metropolitan Life Insurance Company to recover double indemnity benefits provided in life policy. On motion for reargument of order directing commission to issue.
Order in accordance with opinion.
Tanner, Sillcocks Friend, of New York City (Julius C. Krause, of New York City, of counsel), for defendant.
Brown Becker, of New York City (Louis Brown, of New York City, of counsel), for plaintiff.
Motion for reargument is granted.
It appears that in New Hampshire a physician may be required to testify fully in relation to his examination and treatment of his patient and that no privilege exists such as is afforded here by Section 352, Civil Practice Act. The insured was a resident of New Hampshire and the contract of insurance with this defendant was made in New Hampshire. The action upon the policy is brought in New York by the widow of the insured. The defendant seeks to prove by the testimony of New Hampshire physicians who are claimed to have examined or treated the insured that he died of natural causes and did not suffer accidental death and that plaintiff is therefore not entitled to recover double indemnity provided in the policy in the event of accidental death. I believe that the testimony of these physicians as to matters privileged under the laws of New York may not be taken by deposition in New Hampshire for use at the trial in New York. The public policy of this state does not permit the use of such evidence. The admissibility of this evidence is determined by the law of the forum. In Doll v. Equitable Life Assurance Society of United States, 3 Cir., 138 F. 705, a federal court, sitting in New Jersey, received in evidence over objection the testimony of a physician who had attended the insured in her last illness in New York; the physician testified as to the cause of her death. It was held that notwithstanding the fact that such testimony would not have been received in evidence in New York, a court sitting in New Jersey, where such testimony is not privileged, properly applied the law of the forum. I think that case is applicable here and I am in accord with the views there stated, at page 710, of 138 F., as follows: "Objection was made at the trial, to allowing a practicing physician and surgeon of New York, who had attended the sister of the deceased in her last illness, to testify as to the cause of her death. The ground of this objection was, that a statute of the state of New York prohibited a physician or surgeon from disclosing `any information which he might 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 do any act for him as a surgeon.' Counsel for complainant contends that, inasmuch as the contract of insurance was made in the state of New York, the law and usages of the place of the contract should govern in matters of construction affecting the validity of the contract and the rights of the parties, and that therefore this statute was controlling in the trial of the case at bar. Plaintiff's contention, however, confuses those laws which enter into and form a part of the contract, or with reference to which the contract was made, with those, merely, which govern remedy and procedure. The prohibition of the New York statute is a rule as to evidence or procedure, and does not enter into the contract of insurance. The interpretation of the contract does not at all depend upon it. The rule affects the remedy and not the contract. In such cases, the law of the forum, and not of the place of the contract, must govern. The New York statute, therefore, was not applicable to the trial in the Circuit Court for the District of New Jersey."
There is no reason for departure from the general rule expressed in Restatement, Conflict of Laws, Section 597, that: "The law of the forum determines the admissibility of a particular piece of evidence."
The defendant further contends that in any event it should have been permitted to take the depositions of the physicians as to matters not privileged such as "the fact of medical attention, the dates of such attention, the names of physicians and the fact that the man was either sick or not sick." It does not appear, however, that the depositions of the physicians are sought for any purpose whatsoever except to prove that the insured died of natural causes and not by accidental means; it does not appear that the defendant is interested in taking the depositions of the physicians as to matters not privileged. If by a proper affidavit the defendant will show the specific facts or matters, not privileged under section 352, Civil Practice Act, concerning which it seeks to take the depositions of the physicians, it may, at the foot of the order to be made herein, apply at any time for leave to take such depositions. There is, in the papers before me, no proof that the depositions of these physicians, upon matters not privileged, is necessary or material or of any use at the trial.
Defendant seeks to take the testimony of the witnesses who are not physicians under an open commission. I see no necessity for an open commission.
Therefore, upon reargument, the original disposition is, in all respects, adhered to except that the defendant is given leave to apply, at the foot of the order to be made herein and at any time, for permission to take the depositions of the physicians upon matters not privileged upon proper proof of the materiality and necessity of testimony in relation to those matters.
Submit order on notice.