Bouligny v. Metropolitan Life Ins. Co.

Decision Date05 December 1939
Docket NumberNo. 25053.,25053.
PartiesBOULIGNY v. METROPOLITAN LIFE INS. CO.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Eugene L. Padberg, Judge.

"Not to be published in State Reports."

Suit by Edmond L. Bouligny against the Metropolitan Life Insurance Company, a corporation, to recover on a policy of insurance issued by defendant on the life of plaintiff's deceased wife, Estelle Bouligny. From judgment for plaintiff, the defendant appeals.

Reversed and remanded.

Fordyce, White, Mayne, Williams & Hartman and R. E. LaDriere, all of St. Louis, for appellant.

John P. Griffin, of St. Louis, for respondent.

McCULLEN, Judge.

This suit was instituted by Edmond L. Bouligny, as plaintiff, against the Metropolitan Life Insurance Company, as defendant, to recover on a policy of insurance issued by defendant on the life of plaintiff's deceased wife, Estelle Bouligny. It was originally begun before a justice of the peace, where there was a judgment for plaintiff against defendant. On appeal to the Circuit Court of the City of St. Louis, there was a trial before the court and a jury resulting in a verdict for plaintiff for $270, the face amount of the policy, with interest, damages for vexatious delay, and an attorney's fee, making the total judgment $444.95. From that judgment defendant duly appealed to this court.

The petition of plaintiff alleges the issuance by defendant on February 24, 1936, of a policy of insurance on the life of Estelle Bouligny, wife of plaintiff; that, by the terms of said policy, defendant promised to pay, in the event of the death of insured, to the administrator or executor of her estate the sum of $270. The petition further alleges that the insured died on August 22, 1936; that plaintiff made proof of said death and complied with all the terms and conditions of the policy, but defendant refused to pay; that, on January 23, 1937, plaintiff was granted by the Probate Court of the City of St. Louis an order refusing letters of administration on the estate of Estelle Bouligny, and the right to proceed to collect said policy of insurance. The petition prays for the face amount of the policy, with interest thereon, and asks for damages and an attorney's fee for defendant's vexatious refusal to pay.

Defendant did not file an answer either in the justice court or in the circuit court.

The policy sued on was filed with plaintiff's petition, and was introduced in evidence at the trial as plaintiff's Exhibit A. Plaintiff also introduced in evidence letters of refusal of administration issued to him by the Probate Court of the City of St. Louis, dated January 23, 1937. It was admitted that the death of the insured occurred on August 22, 1936.

Plaintiff called as a witness Albert F. Kammann, an attorney at law, who testified that he was familiar with fees charged by lawyers in insurance cases. Answering a hypothetical question embodying the work done by plaintiff's attorney in this case, the witness gave it as his opinion that a reasonable fee for the services rendered by plaintiff's attorney in the case would be $125.

At the close of plaintiff's case defendant requested the court to give and read to the jury a peremptory instruction in the nature of a demurrer to the evidence, which the court refused to give.

Defendant called as a witness Macy Hughes, in charge of the records at St. John's Hospital, who produced and identified the record of Estelle Bouligny while she was at that hospital, which was marked defendant's Exhibit 1 and was offered in evidence over plaintiff's objection and exception but was not shown or read to the jury.

Dr. Curtis Meyer, called as a witness for defendant, testified that he had been a physician practicing his profession for nine years in the City of St. Louis; that he had occasion to examine the insured at St. John's Hospital; that he was in charge of her case when she died on August 22, 1936. The witness identified defendant's Exhibit No. 2, a document in his own handwriting, as being a statement of the proof of death of the insured. He also identified defendant's Exhibit No. 3 as a statement of the proof of death in the handwriting of Dr. J. J. Hennelly who was working on the staff at St. John's Hospital. Said proofs of death were introduced in evidence as defendant's Exhibits 2 and 3, from which it appears that the death of the insured on August 22, 1936, was caused from multiple liver abscesses and acute obstructive hepatitis-toxicosis. Dr. Curtis Meyer, being examined with reference to the proofs of death, testified as follows:

"Q. (By Mr. LaDriere) Well, doctor, I am talking about what it says here, multiple abscesses of the liver and this acute obstructions; assume that. A. Well, the obstruction, it may be there from two to three years, but the liver abscesses would usually be there about six months.

"Q. And that is your opinion of this patient? A. That is my opinion and experience with liver abscesses.

"Q. I see. So, in your judgment, liver abscesses would be of about six months' duration?

"The Court (Q.): That is your opinion, of course, doctor? Not as concerning any particular patient, no individual party. Is that what I understand? A. Yes, that is it, with a patient suffering from that condition.

"Q. (By Mr. LaDriere) All right, then, let me ask you: Taking this particular case, doctor, in your opinion, what would you say the duration was of the multiple liver abscesses and the acute obstructions? A. Well, acute six month liver abscesses, they would get acutely obstructed in six months.

"Q. Would you say they could have been in existence for more than three years? A. Well, to get chronic they could have been.

"Q. And so, chronic hepatitis and multiple abscesses of the liver, liver abscesses, in other words, was the cause of death? A. Yes, sir."

Alice L. Widmer, a hospital worker at De Paul Hospital, called as a witness for defendant testified that she was secretary to the man in charge of all the clinic records of that hospital. She produced a record of the clinic of that hospital covering the case of Estelle Bouligny, the insured, and was asked: "What does that record show with reference to what date or dates, how many times and what dates of what year Estelle Bouligny came there to the clinic?" Counsel for plaintiff objected on the ground that the answer sought to be elicited was a privileged communication and was not admissible. The plaintiff's objection was sustained by the court, to which ruling defendant saved an exception.

Defendant also introduced in evidence its Exhibit No. 5, which is a receipt showing a deposit in court by defendant of $7.50 premiums which had been paid to defendant, with six per cent. interest thereon. Defendant offered in evidence its Exhibit No. 1, St. John's Hospital record, which had been marked as an exhibit but had not been shown to the jury. Upon objection by plaintiff being sustained by the court, the exhibit was not allowed to be introduced in evidence.

At the conclusion of defendant's evidence, counsel for plaintiff requested counsel for defendant to produce the application for the insurance policy sued on. The policy was produced and counsel for plaintiff read therefrom the report of the medical examination of the insured made by Dr. L. H. Crapp for defendant. The report showed that Dr. Crapp made a physical examination of the insured at the time of the application for the insurance and recommended to defendant that the application be accepted. It was agreed by the parties that Dr. Crapp made the examination of the insured during her lifetime, and that Dr. Crapp was dead at the time of the trial.

At the conclusion of plaintiff's evidence in rebuttal, defendant again offered in evidence the records of St. John's Hospital and De Paul Hospital, but the court refused to admit them, to which action of the court defendant saved an exception.

The defense of the insurer was that the insured was suffering from a disease or diseases at the time of the issuance of the policy on February 24, 1936, which caused or contributed to cause her death on August 22nd of that same year, and its first contention in this court is that the trial court erred in excluding the hospital records which were offered by defendant. Defendant points out that, after the close of defendant's case in chief, plaintiff's counsel read to the jury the report of Dr. L. H. Crapp, defendant's medical examiner, showing that at the time the insured applied for the insurance he examined her eyes, heart, lungs, and other parts of her body, found her to be in good health, and recommended to defendant that the application for insurance be accepted.

Defendant in effect concedes that the hospital records were primarily privileged, but argues that, by reading Dr. Crapp's report to the jury, plaintiff waived the privilege attaching to the confidential relationship of physician and patient and thereby made such hospital records admissible. We think it is unnecessary to discuss the many cases cited by defendant in support of this point because they are not applicable to the situation presented here.

The medical examination of the insured made by Dr. Crapp and his report thereon were made for defendant's own purpose, namely, to determine whether or not the insured was at that time in good health and whether or not she was an insurable risk. It is not even claimed by defendant that said examination was made for the purpose of prescribing for or treating...

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