Donaldson v. Life & Cas. Ins. Co. of Tenn., 41588

• Decision Date: 28 November 1960
• Docket Number: No. 41588,41588
• Parties: Mrs. Edith E. DONALDSON v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE.
• Court: Mississippi Supreme Court

Page 701

124 So.2d 701

239 Miss. 635

Mrs. Edith E. DONALDSON v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE.

No. 41588.

Supreme Court of Mississippi.

Nov. 28, 1960.

Murray L. Williams, Water Valley, for appellant.

Hugh N. Clayton, New Albany, for appellee.

LEE, Justice.

Mrs. Edith E. Donaldson, as beneficiary in an insurance policy of $1,000 on the life of her husband, Woodrow Donaldson, sued Life and Casualty Insurance Company of Tennessee to recover therefor. The pertinent provision of the policy, a copy of which was attached to the declaration as an exhibit, is as follows: 'Incontestability--Within two years from date of issue of this Policy, the liability of the Company under same shall be limited to the return of premiums paid if the Insured was not in sound health on the date of issuance and delivery of this Policy. After this Policy shall have been in force during the lifetime of the Insured for two years from date of issue, it shall be incontestable except for non-payment of premiums.'

The answer of the defendant pled in bar (1) an executed receipt by Mrs. Donaldson for a check in the sum of $113.40, being the amount of the premiums paid by the policyholder and a release therefrom; and (2) that the policyholder, Donaldson, on the date of the issuance and delivery of the policy on February 25, 1957, was not in sound health.

The evidence showed that the date of issue and delivery of the policy was February 25, 1957, and that Mr. Donaldson died about 2:30 in the afternoon of February 24, 1959.

E. L. McVey, the treasurer of People's Wholesale Company of Water Valley, Mississippi, associated with the company since 1923, testified that Mr. Donaldson had been employed by the company for five or six years prior to his death; that his job was a strenuous one but that he was able to perform all the duties required of him; that the payroll report for 1957 showed that he worked ten hours or better each day; and that he was paid a full salary every week, plus a bonus of $50 with the last one, as a Christmas present. He admitted, on cross-examination, that in 1958 Donaldson became too disabled to perform his duties; that he was hospitalized both in Oxford and in Memphis; and that he was in a wheel chair part of the time, and then later on crutches; and that on account of his condition, the company had to let him go.

The testimony of Jasper Barron, who also worked at People's Wholesale Company, was of like effect. However, he admitted, on cross-examination, that he knew that Donaldson took insulin; that he had blisters on his feet and legs; that he lost the use of an eye, and, for a while, the use of a leg.

The plaintiff, Mrs. Donaldson, testified along the same line. On cross-examination, she stated that she and her husband had been married for twenty-three years. In 1942 or 1943, they discovered that he had diabetes. He immediately began to take insulin, and, as he grew older, the dosage had to be increased. During the sixteen years prior to his decease, he never failed on any day to take these shots. Beginning with one, in time the dosage was increased to three, with changes from time to time. For the past several years Dr. Spears of Water Valley had treated her husband. She admitted that frequently she saw blisters on his feet and legs, that he had a sore foot, and that he lost the use of an eye, which, the doctor said, was from diabetes. His hospitalization on two different occasions for about fifteen days each was the result of his diabetic condition.

Dr. D. E. Spears, whose qualifications were admitted, was called by the defendant as a witness. The doctor had treated Mr. Donaldson in his lifetime, and, when objections were made by the plaintiff, the jury was retired. When counsel for the defendant sought to inquire about the history and the treatment of the deceased, the doctor made known that this was confidential information between him and his patient, and, without some authority, he could not release it. Over the plaintiff's objection, the court ruled that 'for the purpose of the record' he would let the testimony be taken. Thus the doctor was required to disclose the result of his examination on August 20, 1954 and the prescribed treatment thereafter until his death. The court then sustained the objection to the testimony of the doctor, based on the knowledge which he gained from Donaldson as his patient. But the court held that, since Dr. Spears examined the deceased after his death, he would let the doctor testify as to the cause of death, and as an expert.

When the jury was returned, the doctor, upon questioning by counsel for the defendant testified that diabetes causes a premature aging of the arteries, and that the process of arteriosclerosis is advanced beyond the usual stages at any given age. For instance, if a man of fifty had diabetes and the disease is fairly developed, his arteries will probably appear to be twenty or twenty-five years older than his actual age, that is, equal to those of a man around seventy or seventy-five.

Counsel then stated a hypothetical question, based solely on the evidence which was brought out on cross-examination of the plaintiff's witnesses, and inquired whether or not, if that evidence was true, the deceased on February 25, 1957 was in sound health, explaining the Mississippi rule as to the meaning of sound health. The doctor's answer thereto was 'Well, certainly we couldn't say that he was in good health.'

The doctor, on cross-examination, stated that the health certificate, filled out by him, showed that Donaldson died of myocardial infarction, that is, the immediate cause of death was a heart attack.

While Mrs. Donaldson received a check of the defendant in the sum of $113.40, the total amount of the premiums paid by the decedent, she protested that the same was not sufficient to cover the liability. Actually she had not cashed the check.

At the close of the evidence, the...