Appeal from Weber County, Second District

5

The further fact proposed to be proven by the physician that, after he had advised the insured that his condition was serious and his disease incurable, the insured thereupon voluntarily stated that he had been suffering with his stomach and pains in his back for two years, would not, standing alone, without other aid or explanation, prove or tend to prove that the insured died of cancer, or prove the nature of the disease that caused the insured's death. There is no proof or offer of proof in the record, except the proof proposed to be given by the physician, that the insured had cancer, or that that disease caused his death, or of the nature of the disease or sickness that did cause his demise.

In addition, it must, we think, be accepted as a fact, universally recognized by not only the medical profession but by every one, that a physician, in attending or prescribing for a patient, of necessity ought to know and does know, and does ascertain for that purpose from his patient, the duration of the disease, which, of necessity, must aid him in determining the nature of the treatment to be given, the patient's strength or ability to undergo surgical operations or take other severe treatment, and the likelihood of such treatment proving beneficial or proving fatal, as it did in this case. Such would seem to be accepted as a matter of common everyday knowledge, and, as such, recognized and enforced by the courts. The fact as to whether the disease to be treated is chronic or acute-in other words, its duration-surely is a part of the information that every physician would want to know and would need to know in the intelligent discharge of his duties, to enable him to prescribe for and treat his patient. Whether the physician acquired the information, as above stated, from voluntary statements of the patient, or whether it was acquired from investigation or inquiry on his part, it would, nevertheless, be included within the information privileged under the section of the statute set out.

It follows from the above conclusion that there was no prejudicial error in the rulings of the court, and that the

Lombard v. Columbia Nat. Life Ins. Co., 50 Utah 554

judgment should be affirmed, respondent to recover costs. Such is the order.

MCCARTY, CORFMAN, and THURMAN, JJ., concur. FRICK, C. J.

I concur in the result. If, however, the conclusion of Mr. Justice GIDEON is based on the receipt which he has copied, alone, I cannot concur in the reasons stated by him. The defendant, in its answer, affirmatively averred: (1) That the policy sued on was not delivered at any time; and (2) that it was not delivered while the deceased was in sound health, as provided in the application of insurance which is made a part of the policy, and both of which the plaintiff produced in evidence at the trial. Upon the second question the defendant averred that the application, which was made a part of the policy, contained the following provision:

"I certify that all the statements and answers appearing herein and in Part II hereof are full, complete, and true, and agree that the insurance hereby applied for shall not take effect until the issuance and delivery of the policy and the payment of the first premium thereon while I am in sound health."

There is neither claim, pleading, nor proof on the part of the plaintiff that the foregoing provision was waived by the defendant, nor, as I understand counsel, is it contended that the receipt superseded the provision contained in the application which I have quoted. Indeed, plaintiff's counsel, in their brief, state the questions involved here thus:

"In our view, therefore, there are but two material questions of law involved in this appeal: (1) Was the policy in question delivered in February, 1915? (2) Was the information obtained by Dr. Worrell, while acting as the physician of the insured, privileged, and his testimony properly excluded, under the section and subdivision referred to?"

There can be no doubt that such a provision in the application, and especially if made a part of the policy, is valid and binding on both parties to the contract. 25 Cyc. 725, and

Appeal from Weber County, Second District

cases there cited. Nor is there any doubt that such a provision may be waived by the company. Same vol., p. 730. It is also settled beyond dispute that the contents of the application and of the policy, if the application is made a part of the policy, constitute the contract of insurance. The contents of other papers may, however, be required to be considered in connection with the application and policy, if they were considered by the parties and are referred to in the policy or the application. Under such circumstances, all that is contained in all of the papers upon a particular subject must therefore be considered in determining the rights of the parties. If the receipt set forth in the opinion of Mr. Justice GIDEON is considered, it must be considered in connection with what is said in the application and policy with respect to how and when the insurance shall become effective, and neither party may rely solely on what may be contained in one of those papers. If that were not so, the insurer might impose additional conditions in the receipt upon the insured, which might defeat the insurance. When, therefore, there is a provision in the application which is made a part of the policy, as in this case, or in the policy and it is not averred that the provision has been waived or superseded, then the receipt, if any is issued, must be considered in connection with the contents of the application and of the policy. In this case, therefore, I think the defendant had a right to insist that the policy did not become effective for two reasons: (a) Because it was not delivered to the insured; and (b) for the reason that, if it was delivered to him, he was not in sound health at such time, as provided in the application. And I think that the defendant has a right to have the judgment of this court upon both of those propositions. In my judgment, however, the evidence is sufficient to justify the conclusion that the policy was intended to be, and in fact was, delivered within the purview of the law; and I am further of the opinion that the evidence is insufficient to justify a finding that the deceased was not in sound health when the delivery of the policy was made, as just stated. Those two

Coburn v. Bartholomew, 50 Utah 566

propositions must therefore be determined against the contention of the defendant.

Whether the district court erred in not permitting the doctor to testify on behalf of the defendant for the reasons stated in the opinion of Mr. Justice GIDEON I am in doubt. The question, under our decisions, is a very close one. In view, however, that my associates are of the opinion that the ruling of the district court upon that question was right, I defer to their judgment.

For the reasons stated, therefore, I concur in the affirmance of the judgment.

COBURN v. BARTHOLOMEW

No. 3010. Decided August 9, 1917. Rehearing denied October 4, 1917. (167 Pac. 1156.)

1.

PUBLIC LANDS-ENTRY-ASSIGNMENT-VALIDITY. Act Cong. March 28, 1908, c. 112, section 2, 35 Stat. 52 (U. S. Comp. St. 1916, section 4682), providing that no assignment of entry should be allowed except to a person qualified to make entry, does not invalidate the contract of an entryman to convey the land upon which he entered, after due proofs were completed. (Page 570.)

2. PLEADING-MOTIONS-JUDGMENT ON PLEADINGS-EFFECT AS DEMURRER. While a defendant's motion for judgment on the pleadings is not strictly proper, such motion may be treated as a general de(Page 570.)

murrer.

3. VENDOR AND PURCHASER-RECOVERY OF MONEY PAID-PLEADING. In suit for money deposited to secure payment by the vendee of land under the entryman's agreement to sell it as soon as proofs were completed, unless it appeared in the agreement or on the face of the complaint that plaintiff was not qualified to make an entry of land, the complaint was not subject to general demurrer. (Page 570.) 4. VENDOR AND PURCHASER-FAILURE OF CONSIDERATION-RIGHT TO RECOVER. Where defendant agreed to convey land entered by him to plaintiff when proofs were completed, and to deposit a share of an irrigation company to insure plaintiff's being able to secure water, there was no basis for contention that plaintiff purchased the water share outright, when defendant, through his own fault, failed to complete the entry. (Page 571.)

5. VENDOR AND PURCHASER-RECOVERY OF PRICE-FORM OF REMEDY. Under Comp. Laws 1907, section 3498, providing there can be but

Appeal from Salt Lake County, Third District

one action for recovery of any debt secured by mortgage, which action must be in accordance with this chapter, and further providing for the sale of the mortgaged property, where plaintiff agreed to buy land and paid half of the price which defendant secured by depositing in escrow a share in an irrigation company, and defendant who had entered the land failed to complete the entry, plaintiff's remedy to recover the money paid, was by foreclosure on the share in escrow, and not by action for damage for breach of contract.1 (Page 572.)

6. APPEAL AND ERROR-DETERMINATION—NECESSITY

OF REMAND.

Though judgment of the trial court was right as to the amount, it cannot be affirmed without remand where plaintiff adopted the wrong form of action, by suing for damages instead of proceeding to foreclose his lien for the debt on stock standing in plaintiff's name in escrow in a bank. (Page 572.)

Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge.

Action by J. W. Coburn against Vern Bartholomew.

Judgment for plaintiff. Defendant appeals.

REMANDED with instructions.

Wm. B. Higgin for appellant.

Willey & Willey for respondent.

THURMAN, J.

On the 31st day of March, 1910, at Burtner, Millard County, this state, plaintiff and defendant entered into a written agreement in words and figures as follows:

"This memorandum witnesseth that John W. Coburn agrees to purchase at the price of ($1,600) sixteen hundred dollars, the following described real estate situated in the county of Millard, state of Utah, to wit: The S. E. 14 of the S. W. 14 of Sec. 6, T. 17 S., R. 6 W., S. L. M., and Vern Bartholomew agrees to sell said premises at said price and to convey to John W. Coburn, said purchaser, a good title thereon, subject to final proof and (25) twenty-five shares of water in the Mel

1 Bacon v. Raybould, 4 Utah, 357, 10 Pac. 481, 11 Pac. 510; Boucofski v. Jacobsen, 36 Utah, 165, 104 Pac. 117, 26 L. R. A. (N. S.) 898.