EVIDENCE -WITNESSES - PRIVILEGED COMMUNICATIONS BETWEEN PHYSICIAN AND PATIENT--STATUTORY EFFECT OF ASSERTING PRIVILEGE IN ACTIONS ON INSURANCE CONTRACTS

Plaintiff, beneficiary of an insurance policy (but not the personal representative of the deceased insured), sued to recover the amount of the policy from the insurance company. As a defense the defendant claimed that the policy never became effective because the insured had made material misrepresentations in the application as to his state of health. To show that there had been such misrepresentations, the defendant proved that the insured had been treated by physicians during the five years preceding the issuance of the policy. Upon objectionμ by plaintiff the court excluded the testimony of the doctors as to the nature of the illness for which the insured was treated.

Held, the admission of the privileged testimony could be objected to by any party to the litigation, and because of statute the court must presume a material misrepresentation and award judgment to the defendant. Roth v. Equitable Life Assurance Society of United States, (N.Y. S. Ct. 1945) 59 N.Y.S. (2d) 707.