Allen v. American Life & Accident Ins. Co.

• Decision Date: 09 September 1938
• Docket Number: No. 24365.,24365.
• Citation: 119 S.W.2d 450
• Court: Missouri Court of Appeals
• Parties: ALLEN v. AMERICAN LIFE & ACCIDENT INS. CO., Inc.

119 S.W.2d 450

ALLEN v. AMERICAN LIFE & ACCIDENT INS. CO., Inc.

No. 24365.

St. Louis Court of Appeals. Missouri.

September 9, 1938.

Rehearing Denied September 23, 1938.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be published in State Reports."

Action by Thomas Allen against American Life & Accident Insurance Company, Incorporated, on an insurance policy, tried to a jury. From a judgment for plaintiff, defendant appeals.

Affirmed.

Stephen Barton, of Benton, for appellant.

Ray B. Lucas, of Benton, for respondent.

SUTTON, Commissioner.

This is an action on an insurance policy in the sum of five hundred dollars on the life of Ola Allen. Plaintiff, Thomas Allen, is the widower of Ola Allen, and is the beneficiary named in the policy.

The policy was issued on December 8, 1930, and required a monthly premium payment of $1.64. The policy provides that should the policy become void in consequence of nonpayment of any premium it may be reinstated on payment of premiums in arrears subject to evidence of the insurability of the insured satisfactory to the company. The policy lapsed for nonpayment of the premium due in October, 1931. No further premiums were paid until April 15, 1932. On that date, on solicitation of defendant's agent, the insured paid all the premiums in arrears, and made application for reinstatement of the policy in which she stated that she was at the time in good health. The policy was thereupon reinstated.

Defendant in its answer alleges, by way of an affirmative defense, that said representation made by the insured in said application for a reinstatement of the policy that she was in good health was untrue, but that the insured was in bad health then and died of an illness of which she was suffering at the time.

The trial, with a jury, resulted in a verdict in favor of plaintiff for five hundred dollars, the face amount of the policy, with interest, and judgment was given accordingly. Defendant appeals.

Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence.

On a former appeal to this court a judgment for plaintiff in this cause was reversed and the cause remanded for errors in the trial. Allen v. American Life & Accident Insurance Company, Mo.App., 83 S.W.2d 192. This court on that appeal, however, ruled that the trial court properly refused an instruction in the nature of a demurrer to the evidence.

On the present appeal the evidence, as disclosed by the record, is, with one exception, substantially the same as on the former appeal. The evidence shows that, on May 10, 1932, following the reinstatement of the policy, the insured became sick and confined to her bed, and was on June 13th removed to the Southeast Missouri Hospital at Cape Girardeau, where she died on June 14, 1932.

Dr. O. L. Seabaugh testified, for defendant, that he treated the insured at the hospital, that he had never seen the insured nor treated her theretofore, that she died of carcinoma of the uterus, that in his opinion it would take a year or more for such disease to produce death, and that he did not think it possible for a person to contract such disease and die from it within two months thereafter.

Dr. Seabaugh's affidavit as the attending physician, which became a part of the proofs of death furnished by plaintiff, contained the statement that the cause of her death was carcinoma of the uterus, and that the duration of her last illness was one year.

Dr. D. G. Seibert, called as a witness by defendant, gave similar testimony to that given by Dr. Seabaugh as to the duration of the disease of carcinoma before causing the death of a person afflicted therewith.

Plaintiff in rebuttal, and a number of witnesses called by him, testified that on April 15, 1932, and prior thereto, insured did her housework and appeared to be in a normal state of health and unafflicted with any disease, and that she did not complain of being sick before May 10, 1932.

On the former appeal this court, reviewing a similar state of facts, said (page 193):

"Defendant urges as its first assignment of error that the trial court should have given its instruction in the nature of a demurrer to the evidence; and argues in support thereof that the opinions of laymen could not overcome the statements in the physician's certificate which was filed with the proofs of death, and that the testimony of medical witnesses who were versed in diseases was conclusive.

"The burden of proof rested on defendant, and we cannot agree to this contention. While the testimony of physicians should carry great weight covering matters about which they are especially qualified to testify, such testimony is by no means conclusive. The testimony of lay witnesses as to the apparent good health and soundness of the insured at the time she signed the application for revival has some evidentiary strength. This view is supported by the following cases: Wollums v. Mutual Benefit Health & Accident Ass'n, 226 Mo.App. 647, 46 S.W.2d 259, loc. cit. 268; Johnson v. Missouri Insurance Co. (Mo. App.) 46 S.W.2d 959; Haney v. Security Benefit Ass'n, 225 Mo.App. 872, 34 S.W.2d 1046; Scott v. National Life & Accident Insurance Co. (Mo.App.) 281 S.W. 67; Otto v. Metropolitan Life Ins. Co. , 72 S.W.2d 811; Bell v. Kansas City Life Ins. Co. (Mo.App.) 71 S.W.2d 135; Kester v. Metropolitan Life Ins. Co. , 71 S.W.2d 839; Streeter v. Washington Fidelity Nat. Ins. Co. , 68 S.W.2d 889."

However, on the present appeal we have in evidence the records of the hospital where the insured died, which were not in evidence on the former appeal. The hospital records recite that the insured was in a dying condition—"almost dead"—when she entered the hospital. The records further recite, under the caption, "Personal History," that insured had been having bad smelling discharges for the past three or four years, gradually becoming more aggravated during the past year, and having sallow complexion, pains in the pelvic cavity, and rapid loss of weight and strength, during the past year.

Defendant now contends that such recitals in the hospital records are conclusive against lay testimony to the contrary. We do not think this is so. On the former appeal the testimony of Dr. Seabaugh, who attended the insured at the hospital, and his affidavit contained in the proofs of death, showed the duration of the disease of carcinoma of the uterus, of which the insured died, was one year. The recitals in the hospital records are merely cumulative. They are not conclusive. They are purely hearsay, and are admissible only under an exception to the hearsay rule. We can see no reason why such hearsay evidence should be regarded as conclusive when the sworn testimony of a physician given at the trial and his affidavit contained in the proofs of death furnished by plaintiff are not regarded as conclusive.

Defendant urges that the recitals in the records are admissions against interest and as such are conclusive. This, however, is a misapprehension of the character of such recitals. They are not admissions at all. They are at most mere hearsay evidence of admissions, and they may be given such effect only by inferring that the recitals are based upon information obtained from the insured or the beneficiary. The statute, however, section 9056, R.S.1929, Mo.St.Ann. § 9056, p. 4196, which requires that the personal and statistical particulars relative to inmates be recorded, also requires that such particulars shall be obtained from the inmate himself, or from relatives, friends, or other persons. If the particulars are obtained from relatives, other than the beneficiary, or from friends, or...