Griffith v. Continental Casualty Company
| Decision Date | 02 July 1923 |
| Citation | 253 S.W. 1043,299 Mo. 426 |
| Parties | LOUISE M. GRIFFITH, Appellant, v. CONTINENTAL CASUALTY COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. H. A. Hamilton Judge.
Affirmed.
Kinealy & Kinealy for appellant.
(1) A physician is incompetent to testify as to information derived from his patient, and all information as to the patient is presumed to be privileged. R. S. 1919, sec. 5418; State v. Kennedy, 177 Mo. 98; Green v. Railroad Assn., 211 Mo. 18; Owens v. Railway, 225 S.W 234; 40 Cyc. 2396, Witnesses; 10 Ency. Ev. 158, Priv. Com.; 4 Jones Comm. on Ev. 559, sec. 760; Battis v. Railway, 124 Iowa 623; Renihan v. Denim, 103 N.W. 574; Munz v. Railroad, 25 Utah 220; Penn Co. v Marion, 123 Ind. 413; Freel v. Railway, 97 Cal. 40. (2) Threats made close enough to death to throw light upon it are admissible, but not when remote. State v. Elkins, 63 Mo. 159; 1 C. J. 499, Accident Insurance; 25 Cyc. 940, Life Insurance; Mut. L. & I. Co. v. Hillman, 145 U.S. 285; State v. Kelley, 77 Conn. 266; Hale v. Life I. & I. Co., 65 Minn. 548; Rens v. Northwest M. L. R. Assn., 100 Wis. 266. (3) City hospital records cannot be made competent evidence by city ordinances. Smart v. Kansas City, 208 Mo. 162; Bagley v. St. Louis, 149 Mo. 122; Cohen v. Term. Ry. Co., 193 Mo.App. 69. (4) Provisions in the policy for furnishing proofs of death are conditions precedent. Ins. Co. v. Kyle, 11 Mo. 289; McCullough v. Ins. Co., 113 Mo. 606; McFarland v. Acc. Assn., 124 Mo. 204. (5) The proofs of loss are evidence that the requirement of the policy has been complied with, but not of the facts therein stated. Newmark v. Ins. Co., 30 Mo. 160; Bowman v. Anderson, 268 Mo. 1. (6) An admission is a statement of a fact against the interest of the party marking it. Sparr v. Willman, 11 Mo. 235. (7) The coroner's verdict is not evidence of the cause of death. Kane v. Supreme Tent, 113 Mo.App. 119; State v. Garth, 164 Mo. 553; State v. Coleman, 186 Mo. 151; Prentiss v. Ins. Co., 225 S.W. 703; Union Co. v. Hollowell, 14 Ind.App. 611; Craiger v. Modern Woodmen, 40 Ind.App. 283; Aetna L. I. Co. v. Milward, 118 Ky. 716; Wasey v. Travelers Co., 126 Mich. 119; Boehme v. Sovereign Camp, 98 Tex. 380; Sullivan v. Electric Co., 51 Wash. 73. (8) Where the policy requires it, the beneficiary merely complies with the policy in furnishing the documents without vouching for their contents. Ins. Co. v. Pulver, 126 Ill. 329; 14 R. C. L. 1445, Insurance. (9) The certificate from the State Board of Health was incompetent for the purpose of showing the cause of death. R. S. 1919, sec. 5803; Schmidt v. Royal Arcanum, 207 S.W. 874; Simson v. Wells, 237 S.W. 520. (10) Witness Harrison's statement that Griffith appeared unconscious was competent evidence. 22 C. J. 530, Evidence; Eyerman v. Sheehan, 52 Mo. 221; Elsner v. Sup. Lodge, 98 Mo. 640; State v. Buchler, 103 Mo. 203; Rearden v. Railroad, 215 Mo. 105; State v. Niehaus, 217 Mo. 332; Partello v. Railroad, 217 Mo. 645; Kirchof v. United Railways, 155 Mo.App. 70. (11) Where the circumstances give rise to the presumption of an accidental death the party against whom the presumption exists must overcome it by evidence. Reynolds v. Cas. Co., 274 Mo. 83; Brunswick v. Ins. Co., 278 Mo. 154; Andrus v. Bus. Men's Assn., 222 S.W. 70; Kahn v. Ins. Co., 240 S.W. 793; 4 Joyce on Ins., sec. 2640, p. 4419; 5 Joyce on Ins., sec. 3373, p. 6179; Insurance Co. v. Sheppard, 85 Ga. 751; Cosmopolitan Co. v. Koegel, 104 Va. 619; Standard Co. v. Thornton, 40 C. C. A. 564, 100 F. 582. (12) Where the evidence as to accident or suicide is evenly balanced the presumption of accident prevails. Brunswick v. Ins. Co., 278 Mo. 154; Griffith v. Cas. Co., 235 S.W. 83; Cases supra. (13) Presumptions disappear when the party in whose favor they operate produces evidence of the fact. Roden v. Transit Co., 207 Mo. 392; Tetweiler v. Railroad, 242 Mo. 178; Burge v. Railroad, 244 Mo. 76. (14) If no such evidence is produced by such party it is proper to instruct as to the effect of the presumption. Paramore v. Lindsey, 63 Mo. 63. (15) It is erroneous to give a number of instructions iterating and reiterating the same proposition. Heimbach v. Heimbach, 262 Mo. 69; Reeves v. Lutz, 191 Mo.App. 550. (16) Suicide is self-destruction through an intentional act done with the intent to cause death. Adkins v. Ins. Co., 70 Mo. 27; Haynis v. Knights Templar, 139 Mo. 416. (17) Instructions warning the jury against sympathy, etc., are only proper where the jury have shown some symptoms of undue regard for or against a party. Johnson v. Railway, 173 Mo. 307. (18) Direct evidence on the question of vexatious refusal to pay is not required. Kellar v. Ins. Co., 198 Mo. 440. (19) Abandoned pleadings are competent evidence on such issue. Fay v. Ins. Co., 268 Mo. 373.
Jones, Hocker, Sullivan & Angert for respondent.
(1) The plaintiff is estopped to assert error in the admission of evidence on behalf of the defendant in proof of a fact which plaintiff has already established in her case in chief. Wiggington v. Rule, 275 Mo. 412, 450; Peterman v. Crowley, 226 S.W. 944, 946; Pinson v. Jones, 221 S.W. 80; Hart v. Brown, 216 S.W. 552; Akeman v. Wabash Ry. Co., 201 S.W. 590; Quarles v. Kansas City, 138 Mo.App. 45; Maveno v. New Guadalupe Mining Co., 170 P. 1088. Where the plaintiff in her case in chief has established a certain fact, the admission of testimony on behalf of the defendant in support of the same fact, even though incompetent, is harmless. Fuller v. Robinson, 230 Mo. 22; Heimbach v. Heimbach, 274 Mo. 301. (2) There is no privilege of that which the law requires a physician to disclose. (3) As the statutes, charter and ordinances of the city of St. Louis require a physician to report all cases of tuberculosis, a physician is competent to testify that a patient was afflicted with tuberculosis where a report to that effect has been made by such physician to the Health Department of the city. Secs, 5772, 5785, R. S. 1919; Art. XIII, Sec. 14, Charter of City of St. Louis; Secs. 1574, 1576, Ordinances of City of St. Louis, Wagner's Revised Code of St. Louis, p. 1230; Bogicevich v. Kenilworth Merc. Co., 199 P. 406; McGinnity v. Bro. of Railway Trainmen, 166 Wis. 83. (4) A physician is only disqualified by statute from testifying to information obtained while attending a patient when such information is necessary to enable him to prescribe for such patient. Threats of suicide made by the patient are not necessary to enable a physician to prescribe for a patient, and the physician is competent to testify to the making of such threats. Halloway v. Kansas City, 184 Mo. 41; Jones v. Kansas City, 85 Mo.App. 20; Green v. Terminal Railroad Assn., 211 Mo. 36. The threats of suicide made by the insured to his physician were not incompetent because too remote from the time of the commission of the suicidal act. Browner v. Royal Indemnity Co., 246 F. 638. The question of the remoteness of threats of suicide appertains to the weight, and not to the competency, of such evidence. Blackburn v. State, 25 Ohio St. 46. The report made by the insured's physician to the Health Department of the city of St. Louis that the insured was afflicted with tuberculosis was admissible in evidence because it was a public document or record. Simpson v. Wells, 237 S.W. 520; Priddy v. Boice, 201 Mo. 309; Reynolds v. Prudential Ins. Co., 88 Mo.App. 679; Ohmeyer v. Supreme Forest Woodmen of World, 81 Mo.App. 189. (5) The proofs of death, which included as a part thereof the verdict of the coroner's jury and the statement of the attending physicians, were not only admissible against the plaintiff on the issue of the alleged vexatious refusal of the defendant to pay the policy, but they were also admissible against plaintiff as prima-facie evidence of the facts therein stated. Stephens v. Metropolitan Life Ins. Co., 176 S.W. 253; Grohmann v. Maccabees, 237 S.W. 875; Grey v. Independent Order of Foresters, 196 S.W. 779; Brotherhood of American Yeomen v. Hickey, 191 S.W. 162; Continental Life v. Learing, 240 F. 653; Felix v. Fidelity Mutual Life Ins. Co., 216 Pa. 95; Wasey v. Travelers Ins. Co., 126 Mich. 119. (6) A certified copy of the certificate of insured's death filed with the State Board of Health was admissible in evidence because it was a public document or record. Such a certificate of death is admissible whether the same was made by the attending physician or the coroner. Simpson v. Wells, 237 S.W. 520. (7) The burden of proof is upon the plaintiff, in an action on a policy of accident insurance, to establish that the insured's death was accidental, and not upon the defendant to prove that it was suicidal. Griffith v. Continental Casualty Co., 235 S.W. 83; Brunswick v. Standard Accident Ins. Co., 213 S.W. 689; Lamport v. Aetna Life Ins. Co., 199 S.W. 1020; Laessig v. Travelers Protective Assn., 169 Mo. 272; Bennett v. Standard Accident Ins. Co., 237 S.W. 144; Whitlach v. Insurance Co., 149 N.Y. 45; McAlpine v. Fidelity & Cas. Co., 158 N.W. 967; Gosvenor v. Fidelity & Cas. Co., 168 N.W. 596; Dodder v. Aetna Life Ins. Co., 175 N.W. 651; Federal Life Ins. Co. v. Wilkes, 218 S.W. 59; U. S. Fid. & Guaranty Ins. Co. v. Blum, 270 F. 946; Taylor v. Pacific Mut. Life Ins. Co., 110 Iowa 621; Fidelity & Casualty Co. v. Weise, 182 Ill. 496; Carnes v. Traveling Men's Assn., 106 Iowa 281; Merrett v. Accident Assn., 98 Mich. 338. (8) The instructions requested by defendant were not repetitions. Repetitious instructions will only constitute error where they are so numerous as to bewilder or confuse the jury. Daken v. Chase & Son Merc. Co., 197 Mo. 238; Huss v. Heydt Bakery Co., 210 Mo. 44.
OPINION
In Banc
-- This is the second appeal in this case. It is a suit on a...
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