Rejection of the invocation of new evidence in appeal proceedings in a dispute over supplementary health insurance

Facts

The dispute is between H.X. and Y. Assurances SA. H.X. appealed against a judgment of the cantonal court that refused to hear two doctors he had cited as witnesses in the appeal proceedings. The cantonal court considered that these means of proof should have been invoked at first instance, in accordance with Art. 317 para. 1 CPC.

Considerations

The Federal Court dismisses the appeal. It considers that Art. 317 para. 1 CPC comprehensively and autonomously regulates the possibility for the parties to invoke new facts and means of proof in appeal proceedings. It is therefore not possible to apply Art. 229 para. 3 CPC, which concerns the first instance procedure, by analogy.

The Court notes that the wording of Art. 317 para. 1 CPC has been carefully examined by the legislator, who has deliberately excluded the possibility of a referral to the first instance procedure. This also applies to cases where the judge establishes the facts ex…