Holmes v. Protected Home Circle
| Decision Date | 04 June 1918 |
| Citation | 204 S.W. 202,199 Mo.App. 528 |
| Parties | MARY E. HOLMES, Respondent, v. PROTECTED HOME CIRCLE, a corporation, Appellant |
| Court | Missouri Court of Appeals |
Submitted on Briefs May 8, 1918
Appeal from the Circuit Court of the City of St. Louis.--Hon. Wilson A. Taylor, Judge.
AFFIRMED.
Judgment affirmed.
R. P. & C. B. Williams for appellant.
Hon. A W. Williams Of Counsel.
(1) It was misleading, prejudicial and erroneous to tell the jury as was done in instruction No. 1, that in determining whether or not the assured's death was caused by the excessive use of morphine, the jury should not speculate or guess. Pepperkorn v. St. Louis Transfer Co., 171 Mo.App 709, 154 S.W. 836; State ex rel. v. Ellison, 187 S.W. 23. (2) It was error to tell the jury that the burden of proof was on the defendant as to the issues raised by the answer, without defining the term "burden of proof." Walsh v. Insurance Co., 162 Mo.App. 546; Miller v. Elder, 160 Mo.App. 399; Prince v. Compress Co., 112 Mo.App. 49; Clarke v. Kitchen, 52 Mo. 317. (3) Defendant's demurrer to the evidence at the close of the whole case should have been sustained, because of the admission of the beneficiary in the proofs of death that the assured came to his death from the excessive use of morphine. Such manner of death avoided the certificate under the contract and by-laws of the defendant. Castens v. Supreme Lodge Knights and Ladies of Honor, 190 Mo.App. 57; Stephens v. Metropolitan Life Insurance Co., 190 Mo.App. 679. (4) When the beneficiary sends in to the home office proofs of death which have attached thereto an affidavit or statement of the attending physician as to the cause of the death, this is binding on the beneficiary as an admission and precludes recovery. Castens v. Supreme Lodge Knights and Ladies of Honor, 190 Mo.App. 57; Stephens v. Metropolitian Life Insurance Co., 190 Mo.App. 679. (5) Instruction No. 2 was erroneous because it in effect told the jury that they could not find for the defendant unless they believed that the death of the assured was caused solely by the excessive use of morphine, and this was not cured by defendant's instructions correctly defining the law. Redpath v. Lawrence, 42 Mo.App. 102; Bludom v. Ry. Co., 108 Mo.App. 437; Standard Oil v. Meyers, 74 Mo.App. 447; Walker v. White, 192 Mo.App. 13; Hall v. Coal Co., 260 Mo. 351; Traylor v. White, 185 Mo.App. 325; Ghio v. Schaper Bros., 180 Mo.App. 6; Wojtylak v. Kansas, 188 Mo. 260.
William J. Jones for respondent.
(1) The court did not err in telling the jury, in plaintiff's insctruction No. 1, that in determining whether or not assured's death was caused by the excessive use of morphine, the jury should not speculate or guess. Vormehr et al. v. Knights of the Maccabees of the World, 200 S.W. 76, 79. (2) The phrase "burden of proof" was not used in plaintiff's instruction No. 1. The trial judge may, with propriety, refuse an instruction containing the unexplained expression "burden of proof,' and with equal propriety may give such instruction in cases where it does not tend to confuse or mislead the jury. Whether or not the phase should be defined, depends on the context, and the connection in which it is used. Cramer v. Nelson, 128 Mo.App. 379; Morton v. Heidorn, 135 Mo. 608, 617; Jones v. Durham, 94 Mo.App. 51, 54-55; Berry v. Wilson, 64 Mo. 164, overruling Clarke v. Kitchen, 52 Mo. 317, and similar cases; Steinwender v. Creather, 44 Mo.App. 356, 360. (3) (4) Defendant's demurrer to the evidence at the close of the whole case was properly overruled. The attending physician's affidavit in the proofs of death as to the cause of death is not binding on the beneficiary as an admission and does not preclude recovery. It was contradicted by and in direct conflict with the cause assigned in the affidavit of the beneficiary in such proofs of death. The cause of death, so far as the same was disclosed by the proofs of death and the evidence in this case, did not present a question of law for the court, but a question of fact for the jury. Bruck v. Hancock Life Insurance Co., 194 Mo.App. 529, 537-541; Vormehr v. Knights of Maccabees, 200 S.W. 76, 78; Zinke v. Knights of Maccabees, 200 S.W. 99; Bamberge v. Tribe of Ben Hur, 159 Mo.App. 102. (5) Plaintiff's instruction No. 2 was not erroneous; it did not in effect tell the jury they could not find the defendant unless they believed the death of assured was caused solely by the excessive use of morphine. The instructions in a case are to be read and considered together, for a partial view in one instruction may be helped out by another instruction. Traylor v. White, 185 Mo.App. 325, 331; Hughes v. Railroad, 127 Mo. 447, 452-3; Owen v. Railroad, 95 Mo. 169, 181; Swafford v. Spratt, 93 Mo.App. 631, 637.
This is an action on a benefit certificate issued to the husband of plaintiff, plaintiff named as beneficiary, defendant association agreeing to pay her $ 1500 within 90 days after receipt by defendant of satisfactory evidence of the death of the husband.
The petition avers that the husband had complied with all the requirements as to payments, and that he died on July 1, 1913; that plaintiff had furnished the necessary proofs of death, and that defendant had refused to pay, judgment is demanded for $ 1500, with interest from November 1, 1913.
The answer, admitting the incorporation of defendant, and issuing of the certificate, and that proofs of death had been furnished, sets up that after the issue of the policy, a by-law had been adopted to the effect that the benefit certificates issued to a member should become void and all benefits thereunder should be forfeited "in case the member shall use intoxicants, opiates or other narcotics to such excess as to directly or indirectly cause his death." Averring that the deceased had become addicted to habitual and intemperate use of morphine, which directly contrubuted to and caused his death, defendant denies liability.
There was a reply to this, and a trial before the court and jury, which resulted in a verdict and judgment for plaintiff for the amount claimed, from which defendant has duly appealed.
Along with the proof of death was the statement of the attending physician, that he had first attended the decedent June 26, 1913, and again June 29th, and that he died July 1st; that the exact nature and duration of the disease of which the decedent died was, "Morphine habit for years; morphinism and exhaustion." The beneficiary in her statement gave as the cause of death,
There was testimony to the effect that the deceased had suffered an attack of heat prostration about a year before and again a few days before he was taken to the hospital, where he died, and that he had also had a fall from a ladder which had injured his head and rendered him unable to work or attend to business for quite a while.
The physician who had signed the certificate above referred to, a member of the staff of the hospital to which deceased had been sent, on being examined as a witness, gave it as his opinion that he had died from morphinism, but admitted that he had not applied the usual tests to determine that; had only examined and treated the patient two or three times while at the hospital, a few days before his death; knew nothing of his previous history. Another physician, who was the family physician of the decedent but had not attended him professionally in his last illness, testified that about a year before the death of the insured, he had treated him for heat prostration, from which he was suffering; had sustained a heat stroke; that he had been sick from that for two or three weeks, during which time he was under the care of witness. Decedent had also been afflicted with a hydrocele, necessitating the drawing off of water from a sack. Witness had tapped decedent every two or three months, the decedent coming to his office for that purpose. In June, 1913, the witness was called in to attend decedent and found him again suffering from a heat stroke and delirious; that was four or five days before he was sent to the hospital, which occurred on the advice of this physician the patient being so violent that witness deemed it best to have him sent to a hospital and he was accordingly sent to the Alexian Brothers' Hospital, the only private hospital in the city where...
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