Best v. Equitable Life Assur. Soc.

• Decision Date: 08 November 1927
• Docket Number: No. 20068.,20068.
• Citation: 299 S.W. 118
• Parties: BEST v. EQUITABLE LIFE ASSUR. SOC.
• Court: Missouri Court of Appeals

299 S.W. 118

BEST v. EQUITABLE LIFE ASSUR. SOC.

No. 20068.

St. Louis Court of Appeals, Missouri.

November 8, 1927.

Appeal from Cape Girardeau Court of Common Pleas; O. A. Knehans, Judge.

"Not to be officially published."

Action on policies of life insurance by Alma Minnie Best against the Equitable Life Assurance Society. Judgment was rendered in favor of plaintiff. From an order granting a new trial, plaintiff appeals. Affirmed and remanded.

Spradling & Dalton, of Cape Girardeau, for appellant.

Oliver & Oliver, of Cape Girardeau, for respondent.

BENNICK, C.

This is an action upon two policies of insurance, each in the sum of $1,000, issued by defendant upon the life of Martin L. Best, deceased husband of plaintiff. The case was tried to a jury, resulting in a verdict for plaintiff in the total sum of $2,020. A motion for a new trial, filed by defendant, was sustained by the court upon the ground of error in the admission of testimony, and, from the order granting the new trial, plaintiff has duly appealed.

The petition, drawn in two counts, was in the form usually employed in cases of this character.

The answer to each count admitted the issuance and delivery of the respective policies sued on, but denied liability thereunder by reason of alleged false and fraudulent representations made by the said Martin L. Best in his application for such policies.

Both policies in suit were issued on February 16, 1926, in the city of Cape Girardeau, Mo., where Best resided. He died on July 14, 1926. In both of his applications for insurance he stated, among other things, that he had never changed his occupation on account of his health; that the only physician whom he had consulted, or by whom he had been treated, during the period of five years prior thereto, was Dr. G. B. Schultz of Cape Girardeau; that this treatment had been received in 1923, for a rundown condition; that he had recovered therefrom; and that he had had no illness or injury not mentioned therein.

Defendant's evidence tended to show that Best had suffered from, and had been treated by a number of physicians for, pernicious anemia for several years prior to his death; that the same was ordinarily regarded as a continuing and incurable disease; that he had such disease at the time he made application for, and received, the policies of insurance in question; and that his death resulted therefrom. It was also shown that, by reason of the poor condition of his health, he had been forced to give up a position with the International Shoe Company prior to the time he made application for his insurance; and that he had been employed thereafter as a truck driver by the New Rigdon Laundry.

The new trial was granted as the result of the admission in evidence of certain testimony elicited by plaintiff's counsel on cross-examination of Drs. Wilson and Zimmerman, who testified as witnesses for defendant. We quote that portion of the record which the court regarded as having "materially affected the jury prejudicially for the plaintiff and against the defendant," the examination of Dr. Wilson first appearing, followed by that of Dr. Zimmerman:

"One of the methods of determining whether a person is afflicted with pernicious anemia is an examination of the blood. The signature to the paper you handed me is that of the sister in charge of the laboratory at St. Francis Hospital. I saw her. She is a competent person to make an examination of the blood and all matters on that paper.

"Q. Do you know what that paper shows with reference to the blood or hæmoglobin?

"Mr. Oliver: The paper speaks for itself.

"Mr. Spradling: Here is an expert now, and I am offering this testimony.

"Mr. Oliver: I put him on to show that these questions were asked and answered, and then I quit.

"Court: These are technical terms, and he can answer them.

"Mr. Oliver: We object and except to having this witness answer what is on this paper when the paper speaks for itself.

"Court: Let him explain the technical terms.

"Mr. Oliver: We object, because there was no offering made of the paper which is sought to be explained.

"Court: Objection overruled.

"Mr. Oliver: Exception.

"Q. That paper shows blood count, red, how many? A. 6,170,000.

"Q. And it shows white, bow many? A. 8,800.

"Q. The date of that is August, isn't it? A. August 29, 1925.

"Mr. Oliver: Then we object to that as too remote.

"Court: Overruled.

"Mr. Oliver: Exception.

"Q. That shows normal condition there, doesn't it? A. I would say yes. Pernicious anemia is a wasting of the red blood corpuscles, and in August, 1925, his blood condition was normal."

"I know Sister Modesta and Sister Romana. They are in the St. Francis Hospital. They have charge of the laboratory at St. Francis Hospital. They are competent, very competent, and I know their signatures. The two papers you handed me bear the signatures of Sister Modesta and Sister Romana.

"Q. I will get you to examine these papers which I have had the stenographer mark Plaintiff's Exhibit Nos. 4 and 5, and state what they are.

"Mr. Oliver: We make the same objection as heretofore, that the papers speak for themselves.

"Court: Overruled.

"Mr. Oliver: Exceptions.

"A. Well, on this one paper, it says: Red, 6,170,000; white, 8,800; hemoglobin 90 per cent.; and the other says: Red, 6,170,000; white, 5,400; percum, 8,800; hemoglobin, 80 per cent., 90 per cent. I imagine they made two counts there, one count 80 per cent. hæmoglobin and the other 90 per cent. hæmoglobin. They are very near normal—almost hypernormal. So far as the counts were concerned that the blood was in normal condition at the time this was had. The hæmoglobin was also In a normal condition at the time it was had.

"Pernicious anemia is a disease in which we have a destruction and malformation of the red blood cells. These tests show that in August, 1925, and in October, 1925, the condition of the blood in this patient was practically normal."

In sustaining the motion for a new trial, the court expressly held that the above evidence of the contents of a written instrument, purporting to be the finding of the two nuns in a hospital upon their examination of a certain drop of blood, was incompetent; that the paper itself was the best evidence; that even the paper itself would not have been competent, because it was hearsay; that there was no showing that the drop of blood examined by the nuns was that of plaintiff; and that there had...