Landman v. John Hancock Mut. Life Ins. Co.

• Decision Date: 18 May 1948
• Docket Number: No. 27407.,27407.
• Citation: Landman v. John Hancock Mut. Life Ins. Co., 211 S.W.2d 530 (Mo. App. 1948)
• Parties: LANDMAN v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: Missouri Court of Appeals

211 S.W.2d 530

LANDMAN v.JOHN HANCOCK MUT. LIFE INS. CO.

No. 27407.

St. Louis Court of Appeals. Missouri.

May 18, 1948.

Rehearing Denied June 18, 1948.

Appeal from St. Louis Circuit Court; Robert L. Aronson, Judge.

"Not to be reported in State Reports."

Action by Elsie Landman against John Hancock Mutual Life Insurance Company, a corporation, for accidental death benefits under two life policies.From the judgment, defendant appeals.

Affirmed.

Kenneth Teasdale and Drew Lutten, Jr., both of St. Louis, for appellant.

Barak T. Mattingly, S. J. Bialson and Fred Berthold, all of St. Louis, for respondent.

WOLFE, Commissioner.

This is a suit brought against the defendant company on two insurance policies for sums alleged to be owing by reason of the accidental death of the insured.From a verdict and judgment for $500, with an additional $50 for vexatious refusal to pay and $350 attorneys' fees, the defendant has appealed.

Plaintiff was the mother of Oscar Landman, who carried two policies of life insurance with the defendant company.She was named as beneficiary in both policies.Each policy was for $250 and each provided for the payment of a like additional amount in event of death of the insured by accidental means.The portion of the policies relating to this is as follows: "Additional Death Benefit.Payable for Death Caused by Certain Bodily Injuries.Upon receipt at its Home Office of due proof on the Company's prescribed forms, that the Insured, after the date of issue of this policy and after the attainment of age 15 and prior to the attainment of age 70 and while there was no default in the payment of premium beyond the Period of Grace, sustained bodily injury solely through external, violent and accidental means, that such injury was evidenced, except in the case of drowning (or of an internal injury revealed by an autopsy), by a visible contusion or wound on the exterior of the Insured's body, and that the death of the Insured resulted therefrom, directly and independently of all other causes, within ninety days from the date thereof and while there was no such default in the payment of a premium, the Company will pay, in addition to any other sums due under this policy and subject to its provisions, an amount equal to the amount of insurance otherwise payable hereunder, except as provided below".

The only exception set forth in the policies, following the quoted clause, involved in this suit, is death resulting "wholly or partially from disease or from bodily or mental infirmity."

Landman, the insured, was riding as a passenger in an automobile on the 17th of March, 1946, at 3:45 in the morning.He was seated in the rear seat.The automobile was proceeding southwardly on Vandeventer Avenue, in the City of St. Louis, when it came into collision with another automobile at the intersection of Lafayette Avenue.Both vehicles came to rest against a concrete light standard.The driver of the car in which the insured was riding suffered a broken collarbone, two women passengers were slightly injured and Landman was unconscious.He was taken to the City Hospital where he was pronounced dead and the body was then removed to the morgue.The father of the insured saw the body at the morgue and stated that there was a bruise upon the right temple and that the right knee was "skinned up".Upon cross-examination the father testified that approximately a year before the accident he had noticed that his son was spitting blood and that he had taken him to a doctor.The doctor had, after an electrocardiographic examination, informed the father that the insured's heart was three times the normal size and prescribed medicine.

Proof of death was duly filed with defendant and payment of the face amount of the policies was made, but the $500 asserted to be owing by reason of accidental death was not paid.Attached to the proof of death was a coroner's certificate which stated "Immediate cause of death 1.Shock 2 Mitral regurgitation 3.Cardiac hypertrophy when the car in which he was an occupant being driven by one George Nick Maras collided with an automobile driven by Myron Mann at the intersection of Vandeventer and Lafayette around 3:45 A:M 3-17-46."

A copy of the coroner's certificate was put in evidence by the plaintiff but the formal proof of death was not.

Defendant in its answer admitted that a proof of death was filed with it, but asserted that the instrument was not due proof of accidental death, such as would comply with that portion of the insurance contract relating to accidental death benefits.It is contended that plaintiff failed to make a case for the jury in that she failed to prove the filing of the proper proof of death.

When an issue is raised by a defendant insurer, which brings into question whether or not a proof of death has been filed as provided by the insurance policy, it is ordinarily incumbant upon the plaintiff to prove the filing of the instrument.This may be done by offering it in evidence, but such an offer is unnecessary when it is admitted that the proof of death was filed.The pertinent part of defendant's answer is as follows: "Defendant admits that proofs of death were furnished defendant, that the original policies were surrendered to defendant, and that defendant has paid the face value of said policies to plaintiff; but defendant denies that due proof or any other evidence, has been furnished to, or obtained by, defendant, to prove or establish that Oscar Landman's death was accidental as set forth under the provisions of said policies * * *."

Here the issue seems to go to the adequacy of the proof rather than the filing of it.The proof of death, which was filed with defendant by the plaintiff, was offered by the defendant and is of record.It is upon defendant's printed form, and states upon the face of it that the death was caused by accident and refers to the attached copy of the coroner's certificate.Since it was admittedly filed and was in fact adequate in form and substance, it cannot be said that defendant was in any way prejudiced by plaintiff's failure to offer it in evidence as proof of her compliance with the contract, and the court did not err in so holding.

Defendant's only objection to the introduction of the coroner's certificate is that it was a duplicate of the one attached to the proof of death and therefore not a separate document that could be introduced without the introduction of the entire proof of death.This is an attempt to invoke the rule that the introduction of a written instrument carries with it the whole contents of it as stated in Bagnell Timber Co. v. Missouri, Kansas & Texas Ry. Co., 250 Mo. 514, 157 S.W. 497, andSikes v. Riga, 221 Mo.App. 152, 297 S.W. 727.But the certificate of the coroner is a public record and a copy of such certificate is made admissible by statute, when, as in this case, it is properly certified by the registrar.Sec. 9781, R.S.Mo. 1939, Mo.R.S.A.It is competent evidence of the facts stated by it as held by the Supreme Court in the case of Griffith v. Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043, which case was followed and discussed in Callahan v. Connecticut General Life Ins. Co., Mo.Sup., 207 S.W.2d 279.Its admissibility as evidence was not therefore predicated upon the fact that a copy was also attached to the proof of death and by reason of its offer, the proof of death could not be said to be in evidence.

Immediately preceding the close of the plaintiff's case defendant sought to put in evidence in the plaintiff's case the proof of death marked defendant's exhibit 3, exhibit 5 which was a transcript of the coroner's inquest, and exhibit 6 which was a physician's statement.The offer was accompanied by a statement of defendant's counsel which is in part as follows: "In view of the fact that in my judgment counsel for plaintiff has offered and submitted to the jury certified copy of the death record identical with Defendant's Exhibit 4, that he thereby offered in evidence part of the proof of death and that that makes admissible Defendant's Exhibits marked 3, 4, 5 and 6, and I now offer them in evidence in the plaintiff's case and before plaintiff rests."The offered evidence was rejected by the court, stating: "The Court agrees with plaintiff's counsel that plain...