Life & Casualty Ins. Co. v. Walters

• Decision Date: 29 November 1937
• Docket Number: 32906
• Citation: 180 Miss. 384,177 So. 47
• Parties: LIFE & CASUALTY INS. Co. v. WALTERS
• Court: Mississippi Supreme Court

177 So. 47

180 Miss. 384

LIFE & CASUALTY INS. Co. v. WALTERS

No. 32906

Supreme Court of Mississippi

November 29, 1937

Division B

APPEAL from the circuit court of Jones county HON. W. J. PACK Judge.

Action by Mrs. Lena Walters against the Life &amp Casualty Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

S. M. Graham, of Meridian, and A. S. Scott, of Laurel, for appellant.

The court below clearly committed reversible error in refusing the following instruction requested by the defendant: "The court instructs the jury that the failure of the plaintiff, if any, to introduce expert testimony or her failure to throw any light on the issue as touching the pregnancy of her daughter insured, if any, the jury may consider that such testimony, if offered by the plaintiff, would have been adverse to plaintiff's interest."

Haydel case, 171 So. 9.

The court erred in granting certain instructions for the plaintiff, particularly in that certain instructions conflict directly with the defendant's.

Plaintiff's instruction places the burden of proof upon the defendant to prove the insured pregnant at the date of the original receipt, which was November 11, 1936, whereas the declaration binds the plaintiff to November 30, 1936. It certainly does not have to prove she was pregnant prior to November 11, 1936. Yet, the instruction granted to the plaintiff of which we now complain plainly told the jury that the defendant must prove that the insured was pregnant prior to November 11, 1936, and no such burden rests upon the defendant. It is elementary law and needs no citation of authorities that the plaintiff is always bound by the allegations of her declaration. This is self-evident reversible error and cannot be cured by a thousand instructions.

May v. Culpepper, 172 So. 336.

The court erred in overruling the defendant's motion for peremptory instruction.

Metropolitan Life Ins. Co. v. Scott, 134 So. 159.

The appellant proved that the insured died of puerperal sepsis and that this could not have resulted from anything other than pregnancy. The appellant further proved by the nurse who saw the insured give birth to the still-born child that said child had hair on its head and developed finger nails and that it was a boy. The appellant also proved by Dr. Golden, a qualified expert, that no fetus has hair on its head or developed finger nails without having passed through a period of gestation of at least five months' duration. It is a matter of simply arithmetic to compute the time alleged in the plaintiff's declaration of November 30, 1936, to March 10, 1937, the date set forth by the plaintiff when the policy was issued and delivered and the death of the insured. This would, of course, be a period of only three months and ten days. And of course the plaintiff is bound by her declaration. So, the undisputed evidence shows that the insured gave birth to a child of at least five months. Therefore, the record clearly shows that the appellant was entitled to a peremptory instruction.

37 C. J. 649, sec. 405; National Life Ins. Co. v. Jackson, 161 Ark. 597, 256 S.W. 378.

The court erred in refusing to allow the appellant to introduce the death certificate from the Bureau of Vital Statistics of the insured, Mrs. Naomi Walters Ainsworth.

Section 4908, Code of 1930; Hunter v. Hunter, 127 Miss. 683, 90 So. 440; Protective Assn. v. Cranford, 137 Miss. 876, 102 So. 171.

The court erred in refusing to allow the defendant to introduce the birth certificate of the fetus born from Mrs. Naomi Walters Ainsworth.

Section 4908, Code of 1930.

Leonaxd B. Melvin, of Laurel, for appellee.

Miss Holifield, a student nurse at the hospital where the insured was a patient, was permitted to testify, over the objection of the plaintiff, as to what she saw and learned of the patient, the inured, at the time the insured was a patient in the hospital. I call the court's attention to the fact that Miss Holifield was the nurse sent to prepare the room. It is the contention of the appellee that this evidence offered by the defendant was incompetent. The information this young lady gained and to which she testified was obtained while she was in the employment of the hospital and assisting the doctor in charge of the delivery.

Miss. Power & Light Co. v. Jordan, 143 So. 485.

I am unable to see how appellant can get any comfort out of the citation that it uses from 33 C. J. 872, or New Orleans G. N. R. Co. v. Walden, 133 So. 341. In fact, if appellee is able to understand the plain intent of the English language, these authorities are for appellee. The case of New Orleans G. N. R. Co. v. Walden, 133 So. 341, holds that the jury is the judge of the facts and the case having been submitted to the jury on these questions, it should not be disturbed.

It was necessary to assume the testimony of Miss Holifield to be true before Dr. Golden's testimony was competent. If Miss Holifield's testimony is incompetent, Dr. Golden's testimony is without a leg to stand on. There is absolutely no foundation for the assumption necessary to make Dr. Golden's testimony competent. The questions asked Dr. Golden by the appellant were asked by appellant assuming Miss Holifield's testimony to be true. If Miss Holifield's testimony is incompetent, the appellant could not obtain Dr. Golden's testimony. Appellee submits that under the previous holdings of this court Miss Holifield's testimony is clearly incompetent.

In the case of Metropolitan Life Ins. Co. v. McSwain, 115 So. 555, this court sustained Section 1536.

This court has said that one cannot set aside the effect of Section 1536 by doing indirectly what they cannot do directly. Section 4908 has been before this court only on two other occasions. On these occasions, this court has refused to say that Section 4908 abolishes Section 1536.

Mass. Protective Assn. v. Crawford, 102 So. 171.

Appellant seeks to avoid this policy under the following short phrase: "If insured is pregnant at the date of issue of policy and death result from such pregnancy." This phrase is hid deep in the bowels of the policy. There is no evidence that this stipulation of the policy was ever called to the attention of the insured. The only thing that insured had as evidence of the policy was the receipt issued by appellant insurance company. The only condition precedent named in the receipt is that the life proposed is alive and in sound health. If insured stated she was in good health, this would not avoid the policy.

2 A. L. R. 1503; 80 So. 516.

The condition under which appellant seeks to avoid this policy must be construed most favorably for the insured and against the appellant company, the insurer.

New York Life Ins. Co. v. Blaylock, 110 So. 432; Getmania Life Ins. Co. v. Bouldin, 56. So. 610; New Amsterdam Casualty Co. v. Perryman, 140 So. 342; Georgia Cas. Co. v. Cotton Mills Products Co., 132 So. 73.

If appellant is to have relief under this provision of the policy, then pregnancy must be the direct cause of insured's death and the burden of proof is upon appellant to prove that pregnancy was the direct cause of the death of the insured. Did appellant meet this burden of proof? --No. The evidence shows plainly the contrary to be true. Dr. Golden, the expert witness, testified for appellant. Dr. Golden said pregnancy might have been the indirect cause. It could not have been the direct cause, and Dr. Golden did not say positively that pregnancy was the indirect cause. The burden being upon the appellant to make this proof, the appellee now contends that appellant has not only failed to meet this requirement, but appellant's own evidence shows just the opposite. Dr. Golden says that puerperal sepsis could, and in many instances did, set in after a woman was delivered. If a woman is delivered of a child, she is not then pregnant.

If the court should hold Miss Holifield's testimony competent, her testimony was indefinite and uncertain enough to raise a doubt in the minds of the jury. This is especially true when the jury considers her testimony with Dr. Golden's testimony.

The trial court gave the jury the benefit of this incompetent testimony. With this incompetent testimony, the jury found for appellee, and appellee respectfully submits that this court should not disturb the verdict of the jury.

Argued orally by S. M. Graham, and A. S. Scott, for appellant, and by Leonard B. Melvin, for appellee.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Jones county on a life insurance policy issued by appellant to the daughter of appellee, Mrs. Naomi Walters Ainsworth, in which appellee was named as beneficiary. The policy was in the sum of $ 500. There was a trial resulting in a verdict and judgment in appellee's favor in that amount. From that judgment, appellant prosecutes this appeal.

The policy provides theft there shall be no liability under it "if insured is pregnant at date of issue of policy and death results from such pregnancy." Appellant's defense was that insured was pregnant when the policy was issued, and that death resulted from such pregnancy. Appellant contends that it was entitled to a directed verdict as requested. We are of the opinion that the issue was one for the jury. We reach that conclusion from the following considerations: In appellee's declaration it is averred that the policy was issued and took effect on the 30th day of November, 1936. The evidence showed that the original receipt for the first four weekly premiums was dated November 11, 1936. In the trial appellee proceeded upon the theory that the policy took effect on that date, while appellant Nought to hold appellee to the...