Hicks v. Metropolitan Life Ins. Co.

• Decision Date: 30 December 1916
• Docket Number: No. 14516.,14516.
• Citation: 190 S.W. 661,196 Mo. App. 162
• Parties: HICKS v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

190 S.W. 661

196 Mo. App. 162

HICKS v. METROPOLITAN LIFE INS. CO.

No. 14516.

St. Louis Court of Appeals. Missouri.

December 30, 1916.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by Lucinda Hicks against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

Fordyce, Holliday & White, and W. R. Mayne, all of St. Louis, for appellant. James J. O'Donohoe, of St. Louis, for respondent.

ALLEN, J.

This is an action originating before a justice of the peace, on a policy of insurance issued on November 11, 1912, insuring the life of one Sadie Griffin in favor of plaintiff, the mother of the insured, named as beneficiary therein. The insured died on September 24, 1913; and shortly thereafter plaintiff duly furnished defendant with proofs of death, and demanded payment of the amount of the policy, but defendant refused to pay the same. Plaintiff prevailed before the justice of the peace, and on defendant's appeal to the circuit court, and a trial there de novo before the court and a jury, there was a verdict and judgment for plaintiff in the sum of $279.70, being the amount of insurance provided for by the policy, with interest thereon, together with 10 per cent. damages and an attorney's fee of $100 as for vexatious refusal to pay. From this judgment defendant has brought the case here by appeal.

Plaintiff, to sustain the issues on her part, introduced the policy sued upon, showed that the premiums had been duly paid thereon, made proof of the death of the insured on September 24, 1913, and of the demand made upon defendant company and its refusal to pay. Testimony was also adduced in plaintiff's behalf respecting the value of the services of plaintiff's attorney in the action. The defendant filed no answer, but sought to show that the insured procured the issuance of the policy by material misrepresentations respecting her health at and prior to the issuance thereof, and that no obligation was assumed by defendant under the policy, according to its terms, for the reason that the insured was not in sound health at the date of its issuance and delivery. Over plaintiff's objections, defendant introduced the proofs of death, consisting of a sworn statement of plaintiff, together with a certificate of one Dr. Mueller, the physician who attended the insured in her last illness; both of these being on blanks furnished by the defendant company and consisting of answers made to questions propounded by defendant. And likewise, over plaintiff's objections, the defendant introduced a certified copy of the certificate of death filed with the state board of health under the provisions of section 6684, Revised Statutes 1909, and also the written application signed by the insured when she made application for the policy. Defendant then called Dr. Mueller as a witness in its behalf, and sought to elicit from him testimony respecting the condition of the insured's health at or prior to the issuance of the policy. It appears that his knowledge on the subject had been acquired in his professional capacity as the insured's physician, and, upon objection of plaintiff's counsel on this ground, his testimony was excluded. Defendant tendered into court the amount of the premiums which had been paid to it upon the policy. In rebuttal plaintiff adduced testimony tending to show that the insured appeared to be in good health at the time of the issuance of the policy. Plaintiff then called as a witness defendant's medical examiner who examined plaintiff at the time of her application for the insurance and reported thereon to defendant; and plaintiff put in evidence the written report of the examination signed by the witness.

I. Appellant assigns as error the action of the trial court in overruling its demurrer to the evidence. Appellant's contention in this regard proceeds upon the theory that the evidence conclusively establishes that, on the date of the policy and at the time of the application therefor, the insured was afflicted with the disease which it is said resulted in her death, to wit, a stricture of the rectum or tuberculosis of the rectum. As to this it should be stated at the outset that the defense predicated upon alleged misrepresentations made by the insured in obtaining the policy of insurance, consisting of alleged false answers in the written application therefor, was not available to defendant under the circumstances of the case, and that the trial court should have excluded this application upon plaintiff's objection thereto. This is for the reason that the record discloses that neither the application nor the substance thereof was attached to or indorsed upon the policy, as required by section 6978, Rev. Stat. 1909. By failing to comply with the statute, the defendant lost the right to avail itself of the application as a means for invalidating the policy. This we have but recently held in Schuler v. Metropolitan Life Ins. Co., 191 Mo. App. 52, 176 S. W. 274, where, in an opinion by Reynolds, P. J., the question is fully considered and the authorities cited and discussed.

But the policy itself contained a provision to the effect that no obligation was assumed by defendant thereunder unless on the day thereof the insured were alive and in sound health; and it was competent for defendant to show in defense — as it sought to do — that the insured was not only not in sound health when the policy was issued, but was suffering from the very disease which resulted in her death. However, a condition of this character contained in a life insurance policy is affected and controlled by the provisions of our so-called "misrepresentation statute," viz. section 6937, Rev. Stat. 1909. The rule of decision obtains to the effect that conditions of this character in the policy are unavailing to defeat the insurance, unless it appear that at the time of the issuance or delivery of the policy the assured was afflicted with a disease or diseases which caused or contributed to cause his death. See Salts v. Insurance Co., 140 Mo. App. 142, 120 S. W. 714; Lynch v. Insurance Co., 150 Mo. App. 461, 131 S. W. 145; Dodt v. Insurance Co., 186 Mo. App. 168, 171 S. W. 655; Stephens v. Insurance Co., 190 Mo. App. loc. cit. 678, 679, 176 S. W. 253. And whether or not the malady, if any, from which the insured was suffering at the time of the issuance or delivery of the policy, caused or contributed to cause the death is, by force of the statute controlling the matter, a question for the jury, unless indeed it be that the question is foreclosed by the effect of an admission of the plaintiff in the case, standing wholly unexplained and unrepelled by anything whatsoever, as we held in the Stephens Case, supra. The case before us, however, is wholly unlike the Stephens Case.

It is true that in the certificate of Dr. Mueller, filed by plaintiff as a part of the proofs of death, the doctor states that the insured had been suffering from the very disease which caused her death for about eight or ten years. But the sworn statement of plaintiff, also filed as a part of the proofs of death, stated that the duration of the last illness was about two months. Furthermore, the report of defendant's medical examiner, showing the result of his examination of the insured at the time of the application for the policy, is to the effect that he found the insured, in his opinion, to be in good health, and that he recommended her as a first-class risk. Also there is the testimony adduced by plaintiff that the insured appeared to be in good health when the policy was issued. Such evidence unquestionably made the case one for the jury under our law. In this connection, see the recent case of Bruck v. Insurance Company, 185 S. W. 753, and cases there cited.

It follows that the demurrer to the evidence was properly overruled.

II. Appellant assigns as error the ruling of the trial court in sustaining plaintiff's objection to the testimony of Dr. Mueller, when called as a witness for defendant. Section 6362, Rev. Stat. 1909, provides, among other things, 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." Appellant contends, however, that the privilege vouchsafed by the statute had been waived. Such alleged waiver is predicated, for one thing, upon the fact that when Dr. Mueller was placed upon the stand, and after appellant's counsel had asked him a few preliminary questions, plaintiff's counsel, interposing a general objection, obtained permission of the court to question the witness, and proceeded to propound to him certain questions. But there is no merit in the contention that plaintiff thereby waived the privilege mentioned, for the reason that it clearly appears that plaintiff's counsel sought merely to lay a foundation for his objection later more fully made.

But it is earnestly contended that the privilege in question was waived by the filing of the certificate of this physician, as a part of the proofs of death, pursuant to a clause in the policy as follows:

"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. * * * All the contents of such proofs of death shall be evidence of the facts herein stated in behalf of, but not against the company."

There can be no doubt that where the insured, by a distinct provision in the policy, expressly waives the benefits of all laws disqualifying a physician from testifying concerning any information obtained by him in a professional capacity, and such waiver is expressed to include any person who may have any interest in or claim under the policy,...