Hicks v. Metropolitan Life Insurance Co.

• Decision Date: 30 December 1916
• Parties: LUCINDA HICKS, Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

190 S.W. 661

196 Mo.App. 162

LUCINDA HICKS, Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 30, 1916

Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.

AFFIRMED.

Judgment affirmed.

Fordyce Holliday & White and W. R. Mayne for appellant.

(1) The evidence in the case, coming directly or indirectly from the plaintiff herself and remaining uncontradicted and unexplained, conclusively establishes the fact that on the date of the policy and at the time of the application therefor, and for approximately eight years prior thereto the insured was afflicted with a stricture of the rectum also called tuberculosis of the rectum, and that said disease caused her subsequent death. Therefore, the demurrer to the evidence, at the end of the case, should have been sustained, and a verdict directed for defendant. (a) Proofs of death, furnished by the beneficiary to the insurance company, are prima-facie evidence of the facts therein stated, and are conclusive unless other facts are brought forward to explain them. Stephens v. Metropolitan Life Insurance Co., 190 Mo.App. 673 to 680 (St. L. 1915); Castens v. Supreme Lodge Knights and Ladies of Honor, 190 Mo.App. 57; Insurance Co. v. Newton, 89 U.S. 32, 22 Wallace 32; 3 Elliott on Evidence, sec. 3327; Hassencamp v. Life Insurance Co., 120 F. 475. (b) Since the insured was not in sound health at the date of the policy, and the disease with which she was then afflicted contributed to cause her death, there could be no recovery. R. S. 1909, sec. 6937; Stephens v. Metropolitan Life Insurance Co., 190 Mo.App. 673 to 679. (2) (a) The testimony of Dr. Vincent J. Mueller, offered by the defendant, was proper and competent and very material, and its exclusion was prejudicial error, because any privilege affecting disclosures made to him by the insured was waived so far as they were connected with statements contained in the certificate of this physician furnished to the insurance company by the plaintiff, and in the certificate filed with the Bureau of Vital Statistics of the State of Missouri. Bolton v. Inter Ocean Life and Casualty Co., 187 Mo.App. 180; Western Travelers' Accident Association v. Munsion, 73 Neb. 867, 1 L. R. A. (N. S.) 1068; 4 Wigmore on Evidence, secs. 2388-2390. (b) Moreover, whatever privilege might have been available to plaintiff in this regard, was waived by her counsel's examination of the physician as to the dates when he treated insured professionally. Having elicited such testimony as was thought to be in her favor, plaintiff, could not set up the bar of professional privilege as to testimony which would be prejudicial to her claim. Epstein v. Railroad, 250 Mo. 26. (3) Far from showing that the refusal of defendant to pay the claim for this insurance was willful and without reasonable cause as the facts would have appeared to a reasonable and prudent man before the trial, the evidence and circumstances of this case, taken as a whole, establish on the contrary that claimant herself by her proofs of death furnished the ample reason for defendant's refusal. Under such circumstances, the jury should not have been allowed to award a penalty and attorneys' fees to plaintiff, as for vexatious refusal to pay. Weston v. Amer. Ins. Co., 191 Mo.App. 287; Patterson v. Amer. Ins. Co., 174 Mo.App. 44; Keller v. Insurance Co., 198 Mo. 460; Blackwell v. Insurance Co., 80 Mo.App. 78. (4) The action of the court in striking out from two instructions offered by defendant the clause, "regardless of whether or not said insured, Sadie Griffin, knew that said representations were not true in the respect aforesaid, if you find from the evidence that said representations were not true," was error, because a material representation of fact contributing to the maturity of the policy is fatal to any claim under the policy, whether such misrepresentation be made fraudulently or not. Burns v. Metropolitan Life Ins. Co., 141 Mo.App. 216. (5) The remarks of counsel for plaintiff in his argument to the jury, objected to by defendant, were so highly improper and inflammatory that counsel himself subsequently could not believe that he had been guilty of them. The action of the court in overruling defendant's objections thereto and in failing to rebuke counsel as requested was manifestly highly prejudicial to defendant's right to a fair trial, and to it may properly be ascribed the return of a verdict by the jury, so contrary to the clear weight of the evidence. Fathman v. Tumulty, 34 Mo.App. 241; Blyston-Spencer v. United Rys. Co., 152 Mo.App. 142; Bishop v. Hunt, 24 Mo.App. 377; Ensor v. Smith, 57 Mo.App. 596; Smith v. Western Union Tel. Co., 55 Mo.App. 626; Norton v. St. Louis & Hannibal Ry. Co., 40 Mo.App. 649.

James J. O'Donohoe for respondent.

(1) (a) The policy stipulates: "This policy contains the entire agreement between the company and the insured and the holder and owner hereof." Therefore, the application is no part of the policy. Besides, too, it forms no part of the policy for the further reason that it is neither attached to nor indorsed on the policy. Sec. 6978, R. S. 1909; Schuler v Ins. Co., 191 Mo.App. 52; Coscarella v. Ins. Co., 175 Mo.App. 130. The policy provided that no obligation was assumed by defendant unless on the date of the policy the insured was in "sound health." It further provided that the policy was void if the insured had been attended by a physician for any serious disease or complaint; or has had before the date of the policy any pulmonary disease, or chronic bronchitis, or cancer, or disease of the heart, liver or kidneys. These stipulations cannot serve as a foundation for the defense of misrepresentation, because they directly conflict with sections 6937 and 6940, R. S. 1909. Dodt v. Insurance Co., 186 Mo.App. 168; Ins. Co. v. Stiewing, 173 Mo.App. 108; Harms v. Casualty Co., 172 Mo.App. 241; Welsh v. Insurance Co., 165 Mo.App. 233; Burns v. Insurance Co., 141 Mo.App. 212; Burridge v. Insurance Co., 211 Mo. 158; Karnes v. Insurance Co., 144 Mo. 413; Williams v. Insurnce Co. , 73 Mo.App. 612; Keller v. Insurance Co., 58 Mo.App. 557; Price v. Insurance Co., 48 Mo.App. 281. (b) When the application is attached to the policy or indorsed thereon, or when the policy conforms to secs. 6937 and 6940, R. S. 1909, then, under proper pleadings and sufficient proof, the insurer is entitled to have the question of material misrepresentations submitted to the jury, but not otherwise. Bruck v. Insurance Co., 185 S.W. 753; Schuler v. Insurance Co., 191 Mo.App. 52; Clarkson v. Insurance Co., 190 Mo.App. 624; Buchholz v. Insurance Co., 177 Mo.App. 683; Roedel v. Insurance Co., 176 Mo.App. 584; Coscarella v. Insurance Co., 175 Mo.App. 130; Conner v. Association, 171 Mo.App. 364; Lynch v. Insurance Co., 150 Mo.App. 461; Salts v. Insurance Co., 140 Mo.App. 142; Williams v. Insurance Co., 189 Mo. 70; Keller v. Insurance Co., 198 Mo. 440; Jenkins v. Insurance Co., 171 Mo. 375; Kern v. Legion of Honor, 167 Mo. 471; Schuermann v. Insurance Co., 165 Mo. 641; Ashford v. Insurance Co., 98 Mo.App. 505. (c) The insurer is not entitled to a directed verdict or an outright reversal, for proof of issuance of the policy and death of the insured establishes a prima-facie case entitling the plaintiff to have the jury determine the credibility of the testimony, even though the plaintiff introduces nothing contradicting that offered by defendant. Keily v. K. of F. M., 179 Mo.App. 608; Winn v. M. W. of A., 157 Mo.App. 1; Buchholz v. Insurance Co., 177 Mo.App. 690; Warren v. Insurance Co., 182 S.W. 96. (2) While Dr. Vincent J. Mueller was allowed to testify freely and fully concerning the illness of Sadie Griffin, his patient, yet his evidence, as well as the records of the Bureau of Vital Statistics and those of the National Life and Accident Insurance Company, were highly incompetent. Smart v. Kansas City, 208 Mo. 162. (3) The facts and circumstances warranted the allowance of an attorney's fee, and the amount is reasonable under the decided cases now almost too numerous for citation. Kellogg v. Insurance Co., 133 Mo.App. 391; Cox v. Insurance Co., 154 Mo.App. 464; Buchholz v. Insurance Co., 177 Mo.App. 683; Coscarella v. Insurance Co., 175 Mo.App. 130; Stix v. Indemnity Co., 175 Mo.App. 171; Martin v. Insurance Co., 190 Mo.App. 703; Williams v. Insurance Co., 189 Mo. 70; Barber v. Insurance Co., 187 S.W. 867. (4) The defendant's instructions as requested enlarged on the misrepresentation statute and, without the court's modification, were erroneous. Sec. 6937, R. S. 1909. Furthermore, the defendant was not entitled to have the defense of misrepresentations submitted to the jury, and hence the court could not have committed error in modifying or refusing its instruction. Authorities under point I; Summers v. Insurance Co., 90 Mo.App. 691; Christian v. Insurance Co., 143 Mo. 460. (5) There is no merit in the assignment of error founded on alleged remarks of counsel for plaintiff, for reasons, among which, are: (a) The question is one for the sound discretion of the trial court. Huckshold v. Railroad, 90 Mo. 559; Obuchon v. Boyd, 92 Mo.App. 421; Brinkman v. Gottenstroeter, 153 Mo.App. 355. (b) When no exceptions are taken at the time they are deemed waived. Gidionsen v. Railroad, 129 Mo. 405; State v. Gartrell, 171 Mo. 512; Nichols & Shepard Co. v. Metzger, 43 Mo.App. 619; Meyers v. Casualty Co., 123 Mo.App. 682; Lynch v. Insurance Co., 150 Mo.App. 473. (c) Exceptions must include failure of the trial court to rebuke counsel. State v. Chenault, 212 Mo. 137; Eppstein v. Railroad, 197 Mo. 739. The court properly struck from the bill of exceptions the alleged exception to the failure of the court to reprove counsel because untrue. State...