Chavaries v. National Life & Accident Ins. Co.

• Citation: 110 S.W.2d 790
• Decision Date: 07 December 1937
• Docket Number: No. 24183.,24183.
• Court: Missouri Court of Appeals
• Parties: CHAVARIES v. NATIONAL LIFE & ACCIDENT INS. CO. OF TENNESSEE.

110 S.W.2d 790

CHAVARIES v. NATIONAL LIFE & ACCIDENT INS. CO. OF TENNESSEE.

No. 24183.

St. Louis Court of Appeals. Missouri.

December 7, 1937.

Appeal from St. Louis Circuit Court; John W. Joynt, Judge.

"Not to be published in State Reports."

Action by Pauline Chavaries against the National Life & Accident Insurance Company of Tennessee. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

B. E. Hamilton, of St. Louis, for appellant.

Harvey V. Tucker, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action upon a policy of life insurance which was issued by defendant on March 18, 1929, insuring the life of one Stanton Pierce in the sum of $246. The action is by plaintiff, the sister of the insured and the beneficiary named in the policy.

Issue was joined upon the question of whether defendant was relieved from liability by reason of a breach of the sound health provision of the policy, which provided, in substance, that no obligation was assumed by the company unless, upon the date of the policy, the insured was alive and in sound health.

Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the aggregate amount of $496.20, made up of items of $246 as the face amount of the policy; $86.10 as interest; $24.60 as damages; and $139.50 as an attorney's fee. The latter two items were of course assessed by the jury by way of the statutory penalty for vexatious refusal to pay. Judgment was rendered conformably with the verdict, and defendant's appeal to this court has followed in the usual course.

The insured died on June 13, 1929, exactly two months and twenty-five days after the issuance of his policy, from what the certificate of death disclosed was tubercular enteritis, with pulmonary tuberculosis as a secondary or contributing cause. By tubercular enteritis is meant an inflammatory or diseased condition of the intestines resulting from tubercular infection. The certificate of death had been prepared by Dr. William H. Mansifee, the physician last in attendance on the insured. Both in the certificate of death and in the last attending physician's statement to defendant as a part of the proofs of death, Dr. Mansifee gave the duration of the tubercular enteritis as two months and twelve days, and of the pulmonary tuberculosis as one month and twenty days. This is, of course, of importance as evidentiary of the fact that at the time of the issuance of the policy the insured was not yet afflicted with either of the diseases which ultimately caused or contributed to cause his death.

Plaintiff's evidence was that following the issuance of the policy in March, the insured first became ill in April, and that a Dr. Stafford was called in to treat him about April 24th. Dr. Stafford was shortly discharged from the case and Dr. Mansifee called in on April 29th, and from that time on the insured continued under Dr. Mansifee's care until his death on June 13th.

Two lay witnesses gave testimony for plaintiff which tended to support her contention that the insured had been in sound health at the time of the issuance of the policy.

The policy had contained a waiver by the insured of the right of himself or any other person interested in the policy, in the event of an action in court thereon, to claim the benefit of the privilege attending the relationship of physician and patient.

Availing itself of this waiver, defendant called Dr. Stafford, who testified that he was first called in to treat the insured on March 22, 1929, which was only four days after the issuance of the policy. It will be recalled that plaintiff had testified that Dr. Stafford was not called in until April 24th.

According to Dr. Stafford's testimony, he found the insured suffering from pain in the abdomen, diarrhea, and vomiting, and was told by the insured that he had been suffering for several days with this complaint. Dr. Stafford's diagnosis at the time was ulcer of the stomach and intestines, and he testified that the condition he found could have ended in enteritis. Later he said that he "found the enteritis there," but had admittedly made no test for tuberculosis, and did not know that the insured had died from tubercular enteritis. He stated, further, that from his examination of the insured he had arrived at the conclusion that on March 18, 1929, the date of the issuance of the policy, the insured was not in sound health.

For its first point defendant assigns error to the court's action in having refused to permit it to show by Dr. Stafford that the insured had told him at the time of his examination of the insured that there had been X-ray pictures taken some six months previously which had revealed the presence of a duodenal ulcer.

As against the objection of plaintiff's counsel that such evidence was hearsay, defendant's counsel insisted to the court that it was admissible as a part of the history of the case. Such was the issue upon which the court was called upon to rule, and its ruling was undoubtedly proper in the light of the theory upon which the matter was presented to it. A physician may testify to statements made by the patient relating to present, existing conditions or symptoms, but he may not repeat the history of the case which was given by the patient during the examination. Corbett v. Terminal R. R. Ass'n of St. Louis, 336 Mo. 972, 82 S.W.2d 97; Freese v. St. Louis Public Service Co. (Mo.App.) 58 S.W.2d 758. It is clear, therefore, that the evidence in question was not admissible as a mere exception to the hearsay rule.

But defendant now argues that it was properly admissible as an admission against the insured's interest, in that, by disclosing that the condition found by Dr. Stafford had long antedated the policy, it tended to establish the fact that the insured was not in sound health at the time of the issuance of the policy.

It is true that there are circumstances where the admissions and declarations of the insured himself are admissible in evidence against the beneficiary in an action by the latter on the policy, as where, although the insurance has been made payable to a beneficiary, the insured has reserved the right to change the beneficiary, in which event the interest of the beneficiary is only contingent, and not vested, until the death of the insured occurs. Tuite v. Supreme Forest Woodmen Circle, 193 Mo.App. 619, 624, 187 S.W. 137, 139; Callies v. Modern Woodmen of America, 98 Mo.App. 521, 526, 72 S.W. 713; 37 C.J. 626.

In the policy in suit the right had indeed been reserved to the insured to change the beneficiary, but notwithstanding this it does not follow that the court's exclusion of the particular evidence would have been error, even if defendant's counsel had seen fit to urge its competency to the court upon the theory that it constituted an admission against interest. This for the reason that no admission against interest could have been material unless it had been made with respect to a condition which was shown to have caused or contributed to cause the insured's death. Bailey v. American Life & Accident Insurance Co. (Mo.App.) 96 S.W.2d 903; Limbaugh v. Monarch Life Insurance Co. (Mo. App.) 84 S.W.2d 208. In this instance such evidence as was adduced upon the point disclosed that the insured's death was from tubercular enteritis, with pulmonary tuberculosis as a contributing cause, and there was not one word of evidence to show that he had died from a duodenal ulcer, even if it should be assumed that he was suffering from a duodenal ulcer at the time the policy was issued. It follows, therefore, that the evidence of the insured's admissions would have been irrelevant to the real issue in the case, so that defendant could in no event have been harmed by its exclusion.

It is next contended that the court erred in submitting the question of vexatious delay to the jury.

As to this point, the law is well settled that while affirmative proof is not required...