Frazier v. Metropolitan Life Ins. Company
| Decision Date | 05 December 1911 |
| Parties | SARAH FRAZIER, Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
AFFIRMED.
STATEMENT.--This is a suit by the beneficiary, brought after the death of the insured, to recover the amount of an industrial insurance policy. The plaintiff had judgment, and the defendant has appealed.
The policy provided that the insurer assumed no obligation thereunder unless on the date of the policy, May 31, 1909 the insured was "in sound health." It also contained provision that "proofs of death under this policy shall be made upon blanks to be furnished by the company and shall contain answers to each question propounded to the claimant, physicians and other persons," and that "all the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against, the company."
The defendant's answer set up an affirmative defense to the effect that the condition as to the insured being in sound health amounted to a material misrepresentation, it being averred that at, and prior to, the date of the policy the insured was ill and suffering from the disease of tuberculosis which caused her death some four months later that as such misrepresentation was made in obtaining the policy, it rendered the latter void.
At the trial the plaintiff made proof sufficient to establish prima facie her right to recover.
Thereupon in support of its affirmative defense, the defendant offered and over the objection of the plaintiff was permitted to introduce in evidence, the doctors' certificates, contained in the "proofs of death." Each of the doctors' certificates had endorsed thereon a statement over plaintiff's signature that it "shall be considered as part of the proof of death under policy 42011078 in accordance with the conditions of said policy." Doctor Strode's statement, which is the only one we need concern ourselves with, stated, among other things, that the cause of the death of the insured was tuberculosis and that she had had that disease since January 1st, 1909. The defendant also offered Doctor Strode as a witness, and the court sustained an objection as to his competency. His testimony admittedly would have concerned information acquired from the insured by him while attending her in a professional capacity and which was necessary to enable him to prescribe for her as a physician. As bearing upon the conclusiveness of the doctors' certificates against the plaintiff, as well as the correctness of the trial court's ruling in holding Doctor Strode to be incompetent to testify, the following facts may be pertinent: The insured, Pearl Frazier, died at the home of her mother, this plaintiff, in Mexico, Missouri, about one o'clock in the afternoon of September 11th, 1909. Being in immediate need, the plaintiff, on the suggestion of a neighbor, sent for defendant's local superintendent, Mr. Hannah, with a view to arranging for early collection of the policy. He came about an hour and a half after Pearl's death, bringing with him the blank "proofs of death," and meeting and dealing with the plaintiff alone. He procured plaintiff to sign the "claimant's statement" and then he left her, but returned again in about two hours, bringing the doctors' certificates. Mr. Hannah, defendant's only witness on this subject, does not suggest in his testimony that plaintiff read the doctors' certificates or that he explained their contents to her; he testified merely that he told her she would have to sign the doctors' certificates and showed her where to sign, and that she did sign. The plaintiff's testimony tended to prove that when Mr. Hannah returned with the doctors' certificates, she did not have her glasses at hand and did not and could not read the certificates; neither did he read them to her or tell her what they contained. He merely pointed with his finger and told her where to sign and she did so. That when he left, he took her statement and the doctors' certificates with him. The plaintiff's statement and the doctors' certificates were forwarded by the defendant's local agent, Mr. Hannah, to the defendant at its home office in New York as part of the proofs of death under the policy. Plaintiff's testimony further tended to prove that Mr. Hannah was the agent of the defendant through whom Pearl Frazier procured this policy, and knew Pearl well and saw her often before and after the policy was issued. That thereafter he received payment of the premiums from week to week. That defendant's physician, Dr. Cave, had examined Pearl for this policy.
After filing her petition, and before defendant answered, plaintiff filed her motion for an order on the defendant "to produce to the court and for the inspection of the plaintiff, and for the purpose of being introduced in evidence at the trial of this cause if found proper," among other things, "proof of death of said Pearl Frazier, dated on or about September 11, 1909;" "certificate and report of attending physician during last illness of said Pearl Frazier, dated on or about September 11, 1909, connected to or accompanying proof of death." Plaintiff did not introduce in evidence said "proofs of death" or said "certificate and report," and made objection to the defendant doing so.
Judgment affirmed.
Fry & Rodgers for appellant.
(1) The policy provided: Said proofs were furnished by plaintiff and waived her right to exclude on the trial the testimony of Drs. Strode and Griffin. Western Trav. Ass'n v. Munson, 103 N.W. 688; Modern Woodmen v. Angle, 127 Mo.App. 107; Keller v. Home Ins. Co., 95 Mo.App. 637; Elliott v. Kansas City, 198 Mo. 601; O'Brien v. Implement Co., 141 Mo.App. 331; Foley v. Royal Arcanum, 45 N.E. 456; In re Coleman's Will, 19 N.E. 71. (2) It was error to allow plaintiff's counsel to cross-examine witness Hannah as to when and how frequently he had seen deceased after the policy was issued and before her death, and as to the state or condition of her health at said times, and to refuse to let the witness answer on re-direct examination if the deceased, when he saw her, looked like she had consumption. Hancock v. Blackwell, 139 Mo. 455. (3) By terms of the contract of insurance upon which this suit is based, it is expressly provided, that if at the time the policy was issued the insured, Pearl Frazier was not in sound health but then had any pulmonary disease, the policy should be void. This clause of the policy upon which the defense herein is based is valid and constitutes a complete defense upon proof of the existence of pulmonary tuberculosis at the date of the issuance of the policy and further that such disease caused the death. Salts v. Ins. Co., 140 Mo.App. 143; Lynch v. Ins. Co., 131 S.W. 145. (4) The trial court erred in refusing to permit Dr. Strode to testify as to his examination of Pearl Frazier and the facts he learned by his treatment of her when they were in the relation of physician and patient. The statute is in derogation of the common law and is most strictly construed against the party claiming its protection. Our courts have repeatedly held that it may be waived, and that it will be considered as waived whenever the interested parties have done anything in the way of disclosing the facts in regard to which a physician could testify. Green v. Railroad, 211 Mo. 118.
S. D. Stocks and Allen Stallings for respondent.
(1) The majority of courts have adopted the rule that the plaintiff in an action on an insurance policy has not the burden of proving compliance with conditions therein, but the insurer wishing to avoid liability has the burden of proving the existence of the condition and its breach. 16 Am. and Eng Encyc. Law, 955; Mueller v. Ins. Co., 45 Mo. 84; Hester v. Ins. Co., 69 Mo.App. 186. (2) Preliminary proofs of loss, death and injury furnished by the insured in compliance with the stipulations in the policy are admissible to show that they were furnished in compliance with the stipulations, but not to prove any of the facts set forth therein, they being mere exparte statements. 16 Am. & Eng. Enc. Law, 968; Ins. Co. v. Sheppard, 85 Ga. 751; Ins. Co. v. Gould, 80 Ill. 388; Lewis v. Ins Co., 80 Ia. 259; Leman v. Ins. Co., 49 Am. St. Rep. 348; Summers v. Ins. Co., 53 Mo.App. 521. Affidavits concerning other matters obtained by the insurer are not admissible against the insured in connection with the proofs of death. Plumb v. Ins. Co., 108 Mich. 94. (3) At page 16 of appellant's brief, they claim that plaintiff consented and agreed that the proofs of death might be introduced in evidence by the company by reason of the clause in the policy: "All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against the company," and by that clause also waived the right to object to the physician to testify in...
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