Fitzgerald v. Metropolitan Life Ins. Co.

• Decision Date: 08 April 1941
• Docket Number: No. 25624.,25624.
• Citation: Fitzgerald v. Metropolitan Life Ins. Co., 149 S.W.2d 389 (Mo. App. 1941)
• Parties: FITZGERALD v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

149 S.W.2d 389

FITZGERALD v. METROPOLITAN LIFE INS. CO.

No. 25624.

St. Louis Court of Appeals. Missouri.

April 8, 1941.

Rehearing Denied April 22, 1941.

Appeal from St. Louis Circuit Court; Thomas J. Rowe, Judge.

"Not to be reported in State Reports."

Action by Twinkle Fitzgerald against the Metropolitan Life Insurance Company on life insurance policies. From an adverse judgment the defendant appeals.

Affirmed.

Fordyce, White, Mayne, Williams & Hartman and R. E. LaDriere, all of St. Louis (Harry Cole Bates, of New York City, of counsel), for appellant.

M. J. Doherty and Francis L. Kane, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action on two insurance policies, each for five hundred dollars, issued by defendant, covering the life of Charles Fitzgerald. Plaintiff is the widow of the insured and sues as such under the facility of payment provisions of the policies. Her right to sue was not questioned in the court below, nor is it questioned here. One of the policies was issued on July 8, 1935, and the other on October 26, 1936. The policies having lapsed for nonpayment of premiums, the insured made application for a revival of the policies on June 10, 1938. The application was made upon the solicitation of defendant's agent. In the application, which was signed by the insured, the statement was made that the insured had not, since the policies were issued, been sick or afflicted with any disease or met with any accident or consulted or been prescribed for by any physician. Pursuant to the application the policies were duly revived.

Defendant charges in its answer that the statement made by the insured in the application for a revival of the policies concerning his condition of health was false and made to defraud defendant.

The trial with a jury resulted in a verdict in favor of plaintiff for the face amount of the policies, with interest, and judgment was given accordingly. Defendant appeals.

Plaintiff testified that her husband was in the Veterans Hospital before his death some time in 1936; that he sang for the men located there; that he simply went out there because he wasn't working at the time and was a World War veteran; that she did not remember whether he was there a couple of months and did not recall the next time he went or whether it was in January, 1938; that he went there again in June, 1938, and stayed there until he died in July, after being there about a month; that she visited him in the hospital in 1936 and also in 1938; that she did not know that he had diabetes; that he was very active and was not treated by any doctors other than those at the Veterans Hospital; that she was present when he made application to revive the insurance; that the agent's name was Cody, but the man who took care of them usually was Mr. Greenspan; that she saw her husband sign the application after talking with the agent; that the agent asked no questions at all, but simply said "Sign this paper," and showed her husband where to sign; that he did not ask whether her husband had been under the care of a doctor or any other question; that she also talked to the agent and had a policy revived at the same time; that her two sons also had some policies which had lapsed and were revived at that time.

Harry Greenspan testified, for defendant, that as an agent of defendant he had occasion to deal with the insured, and that the insured signed the revival application in his presence at insured's home; that he suggested to the insured that he reinstate the policies, and read to him the clause in the revival application above the signature, and he answered that he was in good health and had never been sick since the issuance of the policies, and he then asked him to sign it; that he read the clause to him first; that after reading it to him he said he was in good health, and then he signed it.

The policies provide that the company will pay the insurance granted, "upon receipt of proofs of death of the insured made in the manner, to the extent, and upon the blanks required herein," and further provide as follows: "Proofs of death shall be made by any claimant hereunder upon blanks to be furnished by the Company and shall contain the answer to each question propounded to the claimant, to physicians and to other persons, and shall contain the record, evidence and verdict of the coroner's inquest, if any be held. All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against, the Company."

Defendant put in evidence proofs of death made and furnished by plaintiff in compliance with these provisions of the policies. Among the proofs furnished is the certificate of Dr. H. A. Stephenson, wherein he stated that insured died on July 22, 1938; that the cause of his death was cirrhosis of the liver, with diabetes mellitus as a contributory or secondary cause; that the date of his first visit to the insured in his last illness was June 28, 1938, and the date of his last visit was July 22, 1938; that the insured had been ill two weeks when he was called to attend him in his last illness; that the insured had never suffered from any form of tuberculosis; that he was afflicted with diabetes, mild. These statements were made in answers to questions on a blank furnished by defendant. The certificate carried at the top thereof an agreement, signed by plaintiff, that the certificate should be considered as a part of the proofs of death.

Defendant offered in evidence a paper, dated October 14, 1938, and signed by plaintiff, as follows:

"To Any Physician Consulted By the Decedent Within Three Years

"To the Superintendent of

and

"To the Superintendent of any other Institution where the Deceased Person Named Below has been Treated.

"I am claiming the proceeds of policies number 121478156 etc. issued by the Metropolitan Life Insurance Company, on the life of Charles Fitzgerald (deceased), and I request you to permit bearer, who is authorized by me, to make or obtain a copy in whole or in part or an abstract of any records you may have concerning the above-named decedent.

"I authorize bearer, on my behalf, to submit such copy or abstract directly to the Metropolitan Life Insurance Company as part of the proofs of said claim."

Defendant then offered to show by the records of the Veterans Hospital that insured was hospitalized there October 17 to December 16, 1936, and that his diagnosis was diabetes, moderate, and bronchitis, mild; that thereafter he was hospitalized January 17 to February 1, 1938, for diabetes mellitus, moderate, and then he was again hospitalized on June 28, 1938, for diabetes mellitus, and that he died on July 22, 1938, of cirrhosis of the liver, with the contributing cause diabetes mellitus.

On objection of plaintiff these records were excluded on the ground of privilege.

Error is assigned here for the exclusion of the hospital records. Plaintiff insists that the records were properly excluded on the ground of privilege. Defendant insists that plaintiff waived the privilege (1) by authorizing a copy or abstract of the records to be taken and made a part of the proofs of death, and (2) by making the certificate of Dr. Stephenson a part of the proofs of death.

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."

There can be no question that the hospital records offered in evidence in this case are incompetent unless plaintiff waived the privilege granted by the statute. Vermillion v. Prudential Ins. Co., 230 Mo.App. 993, 93 S.W.2d 45; Key v. Cosmopolitan Life, Health & Accident Ins. Co., Mo.App., 102 S.W.2d 797; Bouligny v. Metropolitan Life Ins. Co., Mo.App., 133 S.W.2d 1094.

No copy or abstract of any of the records was ever taken or made a part of the proofs of death submitted to the defendant. Obviously, merely authorizing a copy or abstract of...