Phillips v. United States Benevolent Society

Grant, C. J. (after stating the facts). 1. In his opening statement to the jury, counsel for plaintiff said: “I am not going to produce Dr. Le Seure, because we do not feel able to produce him.” We see no objection to this statement. It was competent for the plaintiff to show that he could not produce a material witness, and to show the reason therefor. [146] Upon the trial plaintiff’s counsel stated to the court, in the presence of the jury: ‘ ‘ Something has been said about getting Dr. Le Seure here. I have his diagnosis, which I will offer in evidence, if my brothers don’t object to it.” Of course, the presumption is ■ that this diagnosis was favorable to plaintiff’s claim; else it would not have been offered. It was clearly incompetent, and his counsel so admitted. The offer should not have been made in the presence of the jury. The jury might readily di*aw an inference of its contents. Counsel should not offer testimony in the presence of the jury which they know is incompetent. The purpose of such offers is apparent. Scripps v. Reilly, 38 Mich. 14. 2. It is urged that the suit was prematurely brought, because it was brought before the expiration of three months after filing proofs of loss. The complete reply to this is that the defendant promptly denied all liability. By this conduct the defendant waived proofs of loss and' all limitations as to time. These requirements preliminary to the right to bring suit do not apply to cases where the defendant at once denies all liability. Norwich, etc., Transp. Co. v. Insurance Co., 6 Blatchf. 241; Manhattan Ins. Co. v. Stein, 5 Bush, 652; Francis v. Insurance Co., 6 Cow. 404. 3. A large number of letters were written by the secretary of the company to the attorneys for plaintiff, and by them to the secretary, after the letter of the company denying liability, and before the bringing of suit, in regard to this claim. This correspondence was had with a settlement in view, and with a distinct statement in the letters of both parties that it should not waive any defenses which the defendant bad. In one of these letters, dated March 31, 1897, written by plaintiff’s attorneys, the diagnosis of • Dr. Le Seure is stated as follows: “Mr. Phillips was presented to the class in the hospital, and a careful examination made of his condition. A compensating curvature of the spine exists; pelvis tips about an inch. The diagnosis, in my judgment, is a rupture of a tendon of one of the muscles of the hip.” [147] This damaging testimony was placed before the jury for their consideration without any opportunity for cross-examination. Some' of these letters might be admissible as evidence of a waiver of the preliminary proceedings to suit, under Burnham v. Casualty Co., 117 Mich. 143, if all such- proceedings, as above shown, had not already been waived by the denial of all liability. But, even if they were admissible for this purpose, testimony of this character cannot be placed before the jury by such statements in a letter. 4. Defendant offered • to show by parol that plaintiff, after the above injury, had applied for membership in another fraternal organization, in which application he stated he had never been sick. This was excluded, under objection. Counsel seek to defend its admissibility upon the ground that the written application was out of the jurisdiction of the court, and in the hands of the chief Secretary of that organization, in Toronto, Canada. The written document had neither been lost nor destroyed, and the law provides a way for securing such testimony by deposition. The testimony was, therefore, properly excluded. 5. It is claimed that the plaintiff did not give timely notice of his injury, in accordance with the provisions of the charter and by-laws. Notice was served upon the company with promptness after he had been informed by one of his physicians that his illness did not result from disease, but from an accident. We do not think.that the first notice that he was suffering with neuralgia was binding upon him. It would be a hard rule, and one which the rules of the company must place beyond doubt, which would deprive a member of his benefits through the mistake of his physician. The notice was served as soon as he ascertained that the accident with which he had met was the occasion of his trouble. We think this a sufficient compliance with the by-law. 6. Dr. Hume was called as a witness by the defendant, and asked to state what he discovered on making his examination of Mr. Phillips. This was objected to, as a [148] privileged communication. Defendant’s counsel appears to have admitted its privileged character, but sought to justify its admission upon the ground that plaintiff’s attorneys had served upon the defendant notice to produce a letter written by Dr. Hume, January 10, 1897, to the defendant. We do not find this letter introduced in evidence. It requires no argument to show that the notice to produce did not justify the admission of the evidence, or change the rule as to privileged communications. 7. The court instructed the jury that, if the plaintiff is entitled to recover in this case, ‘ ‘ I instruct you that, unless he recovers over $100, he will not recover his costs, but defendant will recover costs against him.” This was an action of assumpsit, and although, in an action of tort, such an instruction has been sanctioned (Steketee v. Kimm, 48 Mich. 322), it has been held improper in an action of assumpsit (Sixma v. Montgomery, 98 Mich. 193). This was an action of assumpsit; therefore the instruction was erroneous. 8. The complaint is made that one of plaintiff’s counsel, in his closing argument, used unjustifiable language, which would naturally tend to prejudice the jury, within the rule of Britton v. Railroad Co., 118 Mich. 491. There seems to have been much feeling, between counsel exhibited on the trial of this cause, as appears from the record. The closing argument of plaintiff’s counsel appears in the record, while that of the defendant’s does not. There was language used which we think the presiding judge, upon his own motion, should have checked. We do not fee! disposed to criticise what appears upon the record here, as it is not likely to occur upon a second trial. Other questions are raised, but we think they come within the rulings already made, and will not occur upon a new trial. Judgment reversed, and new trial ordered. Montgomery, Hooker, and Long, JJ., concurred with Grant, O. J. Moore, J., concurred in the result.