Key v. Cosmopolitan Life, Health & Acc. Ins. Co.

• Decision Date: 02 March 1937
• Docket Number: 23836
• Citation: Key v. Cosmopolitan Life, Health & Acc. Ins. Co., 102 S.W. 2d 797 (Mo. App. 1937)
• Parties: CHARLES A. KEY, (Plaintiff) Respondent, v. COSMOPOLITAN LIFE, HEALTH AND ACCIDENT INSURANCE COMPANY, a Corporation, (Defendant) Appellant
• Court: Missouri Court of Appeals

102 S.W.2d 797

CHARLES A. KEY, (Plaintiff) Respondent, v. COSMOPOLITAN LIFE, HEALTH AND ACCIDENT INSURANCE COMPANY, a Corporation, (Defendant) Appellant

No. 23836

Court of Appeals of Missouri

March 2, 1937

Appeal from Circuit Court, City of St. Louis. Hon. Arthur H. Bader Judge.

REVERSED AND REMANDED CONDITIONALLY.

W. E Bennick, COMMISSIONER. Hostetter, P. J., and McCullen, J concur. Becker, J., not sitting.

OPINION

W. E. Bennick

This case, which comes to the writer on reassignment, is an action by the beneficiary upon a policy of insurance which was issued by defendant upon the life of one Eddie Lou Hendrix, who died on July 24, 1933, while she was a patient at St. Mary's Infirmary in the City of St. Louis.

The policy, which was written upon the stipulated premium plan, was for the face amount of $500, and was conditioned upon the sound health of the insured at the time of its issuance and delivery. The defense was put upon the ground of a breach of such provision of the policy, in that the insured was not in sound health at the time of its issuance, but was in fact suffering from the disease or ailment which brought about her death.

Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $675, which included an allowance of $175 as an attorney's fee. Judgment was rendered conformably with the verdict, and defendant's appeal to this court has followed in the usual course.

The policy was issued on July 1, 1933. On July 4, 1933, Dr. A. N. Vaughan was called to attend the insured in what proved to be her last illness. According to his statement she "had just become ill" when he was called in to attend her. She died on July 24, 1933, as we have already pointed out, the cause of death being paralytic ileus and peritonitis, the duration of which had been four days. As a contributory or secondary cause of death the doctor specified acute appendicitis, the duration of which had been twenty days.

It is at once apparent that there was nothing in Dr. Vaughan's history of the case to show that the insured, at the time of the issuance of the policy, was suffering from any ailment or disease which caused or contributed to cause her death. Indeed we do not understand that defendant claims that there was any evidence adduced of a character to support its defense, its point rather being that the court erred in excluding its evidence which would have served that purpose. If it means by this that it should have been allowed to Introduce certain hospital records which it offered in evidence, it suffices to say that the same were excluded by the court upon an objection based upon the privileged character of their contents. While it is true that official hospital records, properly identified, and shown to have been kept pursuant to statutory requirements, are admissible in evidence as an exception to the hearsay rule, they are nevertheless subject to an objection upon the ground of privilege arising by virtue of the confidential relationship of physician and patient. Vermillion v. Prudential Insurance Company of America (Mo. APP.) 230 Mo.App. 993, 93 S.W.2d 45; Shaw v. American Insurance Union (Mo. 'App.), 33 S.W.2d 1052; Tinsley v. Washington National Insurance Co. (Mo. App.), 97 S.W.2d 874; Allen v. American Life & Accident Insurance Co. (Mo. App.), 83 S.w.2d 192. In this case there had been no waiver of the privilege, and when it was claimed on behalf of plaintiff, there was no recourse for the court but to exclude the hospital records upon the objection put upon that ground.

In a similar connection defendant makes the point that the court erred in refusing to admit in evidence a certified copy of the certificate of death which had been regularly obtained by defendant from the Bureau of Vital Statistics. Such certificate was likewise excluded upon an objection by plaintiff based upon a claim of the privileged character of the instrument.

It is provided by Section 9060, R. S. Mo. 1929 [Mo. St. Ann., sec. 9060, p. 4199], that the state registrar shall, upon request, furnish any applicant a certified copy of a certificate of death on file in his office, and that the same, when properly certified, "shall be prima facie evidence In all courts and places of the facts therein stated", by which is meant, we assume, that it shall be prima facie evidence as against an objection based upon the ground of hearsay.

But while the statute determines the admissibility in evidence of a certified copy of a certificate of death despite its character as hearsay, we do not understand that it undertakes to make the same admissible as against a proper claim of privilege. It is provided by Section 9046, R. S. Mo. 1929 [Mo. St. Ann., sec. 9046, p. 4189], that in the preparation of the certificate of death the physician last in attendance on the deceased "shall further state the cause of death, so as to show the course of disease or sequence of causes resulting in the death, giving the primary cause, and also contributory causes, if any, and the duration of each". This obviously requires the physician in making out his certificate to give information which he would not only have acquired from his patient while attending him in a professional character, but which would have been necessary to enable him to prescribe for such patient as a physician or do any act for him as a surgeon.

Here the certificate of death had been prepared by Dr. Vaughan as the physician last in attendance upon the deceased, and as to statements appearing therein with respect to matters falling within the category of confidential communications, we know of no reason why the certificate should have been any more immune to a claim of privilege than would have been the testimony of Dr. Vaughan himself in regard to the same matters.

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