Andrews v. Washington Nat. Ins. Co. of Illinois

• Court: Missouri Court of Appeals
• Writing for the Court: Sutton
• Citation: Andrews v. Washington Nat. Ins. Co. of Illinois, 93 S.W.2d 1045 (Mo. App. 1936)
• Decision Date: 05 May 1936
• Docket Number: No. 23663.,23663.
• Parties: ANDREWS v. WASHINGTON NAT. INS. CO. OF ILLINOIS.

93 S.W.2d 1045

ANDREWS v. WASHINGTON NAT. INS. CO. OF ILLINOIS.

No. 23663.

St. Louis Court of Appeals. Missouri.

May 5, 1936.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be published in State Reports."

Action by Jennie Andrews against the Washington National Insurance Company of Illinois. Judgment for plaintiff, and defendant appeals.

Affirmed.

Martin Farrow, of St. Louis, for appellant.

S. R. Redmond and Henry D. Espy, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover on an insurance policy issued by defendant, on December 28, 1931, in the sum of $308, on the life of Eleanora Dean. Plaintiff, who is an aunt of the insured, is the beneficiary in the policy. The insured died on July 14, 1933. The policy provides that "if the insured is not in sound health on the date hereof, the liability of the company shall be limited to the return of premiums paid on the policy."

The trial, with a jury, resulted in a verdict in favor of plaintiff for the principal sum of $308, with interest to the amount of $16.50, and attorney's fees in the sum of $125, less premiums paid into court amounting to $15.60, making the total amount of the verdict $433.90. Judgment was given in accordance with the verdict, and defendant appeals.

Hospital records introduced in evidence showed that the insured was suffering with pulmonary tuberculosis in September, 1931. The testimony of the lay witnesses was to the effect that the insured was in good health at the time of the issuance of the policy. A copy of the official death report certified by the state registrar was read in evidence. The medical death certificate contained in the report showed that insured's death occurred on July 14, 1933, and that the cause of her death was pulmonary tuberculosis.

The sole question involved here relates to the competency or not of the hospital records.

Section 1731, R.S.1929, Mo.St.Ann. § 1731, p. 4011, provides that a physician or surgeon shall be incompetent to testify "concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon."

It is conceded that the hospital records introduced in evidence in this case are incompetent unless plaintiff waived the privilege granted by the statute. But defendant claims that plaintiff waived the privilege by the following instrument, directed to the hospital authorities, and signed by her, by making her mark, on August 26, 1933, and delivered to Emmett Clark, an agent of defendant, to wit:

"This is to certify that a certain policy of insurance was issued to Eleanora Dean by the Washington National Insurance Company. For the purpose of making a claim under said policy I am desirous of submitting information about the insured from your records to said Insurance Company as a part of the required proof of loss.

"You will therefore please permit the bearer, a representative of the Washington National Insurance Company, to examine your records and secure full information therefrom. This letter will be your authority for so doing.

"I shall appreciate your courtesy in the matter and hereby relieve you of any responsibility for allowing this examination of your records."

Plaintiff, however, contends that, in view of the circumstances under which her signature to this instrument was obtained, it does not amount to a waiver. She testified that she did not remember Mr. Clark talking to her about signing an instrument to permit him to examine the hospital records; that she remembered him asking her to sign a paper that he brought to her; that he came to see her three or four times, and maybe more than that, because she would not sign the paper; that she refused to sign the paper because she did not understand the paper; that she was not able to read, and what little she could read she could not understand; that he said the only way she could get her money was for her to sign this paper, and then he would have the full details of the policy, and then he would get the check and take her to the bank to get her money; that the reason she signed was because he said that was the only way she could get her money; that he said the reason she had not got her money was because she did not sign that paper; that he said that she would have to sign that paper so that he would have a complete record; that he said that if she did sign that paper she would get her...