Keller v. Home Life Insurance Company
| Decision Date | 22 July 1902 |
| Citation | 69 S.W. 612,95 Mo.App. 627 |
| Parties | MARY M. KELLER, Respondent, v. HOME LIFE INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Circuit Court.--Hon. Henry C. Riley Judge.
REVERSED AND REMANDED.
T. D Hines and W. H. Miller for appellant.
(1) The giving of instruction 1 on behalf of respondent and the refusal to give instruction 2 asked by appellant, constitutes reversal error. Ashford v. Ins. Co., 80 Mo.App. 638; 1 Bigelow on Fraud, p. 410; Kerr on Fraud and Mistake, p. 57; White v. Ins. Co., 4 Dillon (U.S.C. C.) 177. (2) The fourth point insisted on by appellant is the refusal of the court to permit the various physicians to testify as to the physical condition of the deceased prior to and immediately after the making of the application for insurance in the face of this express waiver over his signature in the application for the insurance in suit. This waiver is in the following language: "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." This is certainly and clearly erroneous. Underhill on Evidence, p 260, sec. 178; Andrews v. Life Ass'n, 34 F. 870; 19 Amer. and Eng. Ency. of Law, p. 150; Blackburn v Crawford's Lessee, 70 U.S. 175; Groll v. Tower, 85 Mo. 249; Carrington v. City of St. Louis, 89 Mo. 216; Squires v. City of Chillicothe, 89 Mo. 230; Blair v. Railroad, 89 Mo. 337. (3) The jury, in rendering its verdict, inflicted a penalty of ten per cent on this appellant, on the ground that the refusal to pay was vexatious. This is clearly error, first, because the evidence will not justify such a conclusion, and, secondly, because the statute itself is violative of article 5 of the amendments of the Constitution of the United States. Paddock v. Railroad, 155 Mo. 524; Railroad v. Ellis, 165 U.S. 165; Williamson v. Ins. Co., decided by the U. S. Circuit Court, Western Division, Western District of Missouri, in November, 1900. This last case is decided upon the identical statute in question and is decisive of this point. (4) It was certainly error on the part of the court to permit witness Pallette to detail over appellant's objection, the conversation with and the conduct of the assured at the time of taking his application, in view of the fact that the application was reduced to writing. 11 Amer. and Eng. Ency. of Law, p. 300; Boggs v. Ins. Co., 30 Mo. 63; Ins. Co. v. Mowery, 96 U.S. 544; Dolliver v. Ins. Co., 131 Mass. 39.
Wilson Cramer for respondent.
(1) The second instruction given for plaintiff properly declares the law. It is based on a plain statutory provision which is intended to force prompt payment of death claims, and enters into the contract of insurance. R. S. 1889, sec. 8012. (2) The objection that section 8012, supra, is unconstitutional, is made for the first time in this court. No such point was made, directly or indirectly, in the court below, and the suggestion comes too late. Baldwin v. Pries, 103 Mo. 287; Bennett v. Railway Co., 105 Mo. 644; Turley v. Barnes, 131 Mo. 548. (3) The court did right in excluding on objection of plaintiff, the evidence of physicians who had treated the deceased prior to his making application for insurance. These physicians were incompetent under the statutes. R. S. 1899, sec. 4659; Groll v. Tower, 85 Mo. 249; Thompson v. Ish, 99 Mo. 160. A physician is incompetent under the statute, whether his information is derived through communication with his patient or from observation only. Gartside v. Ins. Co., 76 Mo. 446; Thompson v. Ish, 99 Mo. 160. It is conceded that the protection of the statute may be waived by the patient or his representatives. Thompson v. Ish, 99 Mo. 160; Davenport v. City of Hannibal, 108 Mo. 471. In the case at bar, however, there was no waiver, either by the insured or the beneficiary. (4) The contract between the insurer and the insured is contained in the policy and the application therefor, which, by the terms of the policy, is made a part of the contract and is printed on the back of the policy. Neither the policy nor the application contain any reference whatever to a waiver of the statutory provision, relative to the testimony of attending physicians. (5) The statements made by the insured to Pallette, defendant's soliciting agent, at the time of making application for insurance are competent evidence, and defendant's objections to the testimony of Pallette were properly overruled. Boggs v. Ins. Co., 30 Mo. 63.
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, ten 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, Revised Statutes 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, spirituous 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. Life Ass'n, 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:
The policy itself opens in this way (omitting caption):
"Home Life Insurance Company, 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 answer 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...
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