Keller v. Home Life Ins. Co.

• Decision Date: 22 July 1902
• Parties: KELLER v. HOME LIFE INS. CO.
• Court: Missouri Court of Appeals

69 S.W. 612

95 Mo. A. 627

KELLER v. HOME LIFE INS. CO.

Court of Appeals at St. Louis, Missouri.

July 22, 1902.

WITNESS — PRIVILEGED COMMUNICATION — WAIVER — LIFE INSURANCE — PROOF OF LOSS — APPEAL.

1. Where an insured, on behalf of himself and those claiming an interest in the policy, waived the provisions of law forbidding any physician or surgeon from disclosing information acquired while attending him in a professional capacity, it is held that such waiver is binding on the beneficiary in a suit upon the policy, and that it was error for the trial court, in the circumstances stated in the opinion, to exclude testimony concerning the state of health of the insured by physicians who attended him shortly before his application.

2. The privilege of secrecy secured by the statute in regard to professional information obtained by a physician from a patient may be waived by the latter.

3. There is no public policy which forbids a waiver by a patient of the professional secrecy imposed upon a physician in favor of a patient by the statute of Missouri. Rev. St. 1899, § 4659.

4. It is a general rule that a party may waive any right conferred by law for his benefit where the waiver does not conflict with public policy.

5. A party may waive in advance the benefit of the mechanic's lien law.

6. An indorser of a note may waive in advance presentment and notice of dishonor.

7. The beneficiary of a policy is bound by all legal stipulations therein by the insured, and is subject to be defeated by fraud on his part, although the beneficiary may not have participated therein.

8. Where a life policy referred to an application as a part of it, and the application warranted the statements and answers contained in a third document containing declarations to the medical examiner, a statement in the last-named paper, signed by the insured, should be taken to be a part of the policy.

9. Absolute denial of liability under a policy of life insurance amounts to a waiver of proofs of loss.

10. An objection to a judgment on the ground that a statute is unconstitutional which allows damages in case of vexatious refusal to pay an insurance policy cannot be raised for the first time in an appellate court.

11. Points involving constitutional construction must be raised in some appropriate way in the trial court; otherwise they are not available for review.

(Syllabus by the Judge.)

Appeal from circuit court, Cape Girardeau county; H. C. Riley, Judge.

Action by Mary M. Keller against Home Life Insurance Company. Judgment for plaintiff. Defendant appeals. Reversed.

W. H. Miller, for appellant. Wilson Cramer and T. D. Hines, for respondent.

BARCLAY, J.

Plaintiff brought this action to collect the amount of an insurance policy for $2,000 issued by defendant on the life of her husband. Defendant is a life insurance company incorporated in New York, and authorized to do business in Missouri. The date of the policy is October 30, 1899. Plaintiff's husband died June 15, 1900, having paid one annual premium of $79.72. The petition on the policy is in ordinary form. Besides demanding the amount of the policy, it claims, furthermore, 10 per cent. damages thereon and a reasonable attorney's fee, on the ground that the refusal by the defendant to pay was vexatious, within the meaning of section 8012. Rev. St. 1899. The main features of the answer are a general denial and several special defenses. Defendant alleges that the policy was issued on the faith, and in consideration, of certain representations concerning the health and habits of the insured, submitted in his application to defendant for the insurance, and that these representations were false, and then known to him so to be. The statements of the insured are set forth at length in the answer. Their substance is that the insured did not drink wine, spirit, or malt liquor; had never used them to excess; was in perfect health; had never been subject to coughing or to spitting blood, or to chronic cough, asthma, or other symptoms indicating pulmonary weakness, etc. It is alleged that each of the answers was false and known to be by the insured at the time; that by them the insurance was fraudulently procured; and that his death was caused by tuberculosis of the lungs existing to his knowledge at the time he obtained the insurance. The answer is quite long. We give merely an outline of it. One feature was that it alleged a tender of the premium to plaintiff on discovery of the alleged fraud before the action was begun. The defendant further renewed by its answer the tender (including lawful interest), and paid the principal and interest into court for plaintiff. A reply by plaintiff put in issue the new matter.

At the trial before the learned circuit judge and a jury plaintiff introduced in evidence the policy, on the back of which appeared a copy of the application of the insured. Some parts of these documents will be quoted presently. Plaintiff then gave proof of the death of the insured, and of her relationship to him as wife, as well as of circumstances from which a waiver of proof of loss might be inferred. These circumstances consisted of the tender to plaintiff of the premium, and an absolute denial of liability on the part of defendant, after demand of payment. Jefferson v. Association (St. L.) 69 Mo. App. 126. Defendant offered in evidence, without objection, a paper having this caption: "Declarations Made to the Medical Examiner of the Home Life Insurance Company." It contained, first, a series of questions in regard to other insurance, family, and health history of the applicant. The answers in regard to the applicant's health and habits were in all material particulars identical with the statements in the application, which conformed generally to the recitals thereof in the answer. Following the answers to the questions of the medical examiner on the paper just described appears this language: "I warrant on behalf of myself, and of any person who shall have or claim any interest in any policy issued hereunder, each of the above answers to be true, full, and complete." "I hereby declare that the accompanying application to the Home Life Insurance Company for an insurance on my life, dated September 18, 1899, was signed by me." "I expressly waive, on behalf of myself and of any person who shall have or claim any interest in any policy issued hereunder, all provisions of law forbidding any physician or surgeon from disclosing any information acquired while attending me in a professional capacity. August W. Keller, Signature of the Applicant. Witnessed by A. L. Franklin, M. D., Medical Examiner." The policy itself opens in this way (omitting caption): "Home Life Insurance Co., by this policy of insurance, in consideration of the statements and agreements made in the application for this policy, which are hereby made a part of this contract, and of the payment in advance of seventy-nine dollars and seventy-two cents, and of the payment of the same amount to be made thereafter, at the office of the said company in the city of New York, on or before noon of the nineteenth day of September in every year during the continuance of this contract," etc., "does promise and agree to pay two thousand dollars to Mary M. Keller, if living; if not, then to her husband, August W. Keller, his executors, administrators, or assigns," etc. The application of the insured contains, besides the answers to questions, the following statement: "I warrant on behalf of myself, and of any person who shall have or claim any interest in any policy issued under this application, that all the foregoing statements and answers are true, full, and complete, whether written by my own hand or not, and are offered to the company, together with those contained in the declarations to the Home Life Insurance Company medical examiner, as a consideration for, and as the basis of, the contract with said company under any policy issued under this application." Other statements not necessary to quote appear in the application, which purports to be duly signed by the insured September 18, 1899. The defendant in the course of the trial offered the evidence of two physicians who had severally attended the insured in a professional character in the spring of 1899; but the trial court refused to permit either to testify to his observations of the insured or to his opinion of Mr. Keller's physical condition or health (with reference to the points of the alleged misrepresentations). The ground of objection on which the testimony along that line was excluded appears to be that these medical gentlemen were disqualified as witnesses by the force of section 4659. Rev. St. 1899. Defendant duly saved exceptions to the various rulings to that effect.

It will not be needful to review particularly the testimony at this time. The defendant,...