Life & Casualty Ins. Co. v. Walters

• Decision Date: 24 February 1941
• Docket Number: 34303
• Citation: 198 So. 746,190 Miss. 761
• Parties: LIFE & CASUALTY INS. CO. v. WALTERS
• Court: Mississippi Supreme Court

198 So. 746

190 Miss. 761

LIFE & CASUALTY INS. CO. v. WALTERS

No. 34303

Supreme Court of Mississippi

February 24, 1941

November 25, 1940

APPEAL from the circuit court of Jones county, HON. F. B. COLLINS Judge.

Action by Mrs. Lena Walters against the Life & Casualty Insurance Company upon a life policy. From judgment for plaintiff defendant appeals. Reversed and remanded.

Action on life policy by Mrs. Lena Walters against the Life &amp Casualty Insurance Company. A judgment for the plaintiff was reversed by the Supreme Court and the cause remanded. On motion for an order to send down the mandate on an affidavit by the plaintiff in forma pauperis. Motion overruled.

Reversed and remanded. Motion overruled.

A. S. Scott, of Laurel, for appellant.

The verdict is contrary to the evidence and the law; the lower court should have sustained the defendant's motion to instruct the jury to find for the defendant, because this was a suit on an insurance policy, which did not cover pregnancy prior to issuance of policy, death resulted from such pregnancy, all the evidence sustained defendant's affirmative plea to this effect without a single contradiction, the birth certificate shows the fetus was several months older than the policy sued on, and the plaintiff admits the insured died from puerperal sepsis.

Sec. 4908, Code 1930; C. & G. R. Co. v. Cobb, 156 Miss. 604, 126 So. 402; G. & S. I. R. Co. v. Odum, 133 Miss. 543, 98 So. 60; Allman v. G. & S. I. R. Co., 149 Miss. 489, 115 So. 594; G. M. & N. R. Co. v. Jones, 137 Miss. 631, 102 So. 385; 37 C. J. 649, sec. 450; National Life Ins. Co. v. Jackson, 161 Ark. 597, 256 S.W. 378.

The testimony about the insured having menstruated December 10, 1936, could be proof of only one fact, i. e., that the insured was another of the many women who, while pregnant, continued to menstruate. If the appellee had put on the stand even one witness, however ignorant and untrained, who had testified that he saw the Ainsworth baby after its birth and in his, the witness' opinion, the baby was not anywhere close to being six months old at birth, then there would have been a conflict in evidence, but until the plaintiff should present some sort of evidence creating a conflict, or in some way question Dr. Crocker's findings, then a jury's findings regardless of whether or not it had any facts in conflict to decide, is not worth the paper upon which such futile verdict is written. Mere conjecture by a jury will not support a verdict.

Hercules Powder Co. v. Calcote, 138 So. 583, 161 Miss. 860.

Where testimony of an intelligent witness is undisputed, is reasonable, and in harmony with physical facts and facts of common observation, and witness is unimpeached, trier of facts must act on this testimony.

Tarver v. Lindsey, 137 So. 93, 161 Miss. 379; Beard v. Williams, 172 Miss. 880, 161 So. 750.

If menstruation can be scintilla of evidence of non-pregnancy, still such is conjecture and conjecture has no standing in our courts.

Mutual Ben. Assn. v. Johnson, 186 So. 297; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470.

The court erred in granting conflicting instructions. For the defendant the jury was told that if we proved that the fetus in question was more than three months and four days old, then the jury should find for the defendant. For the plaintiff the jury was told that we not only had to prove this fact but also that the further burden was on the defendant to prove that "death was the proximate result of said pregnancy, " and also to further prove that death was the result of pregnancy, regardless of the fact that the plaintiff had sworn herself that insured died from puerperal sepsis.

Jackson v. Leggett, 186 Miss. 123, 189 So. 180; Henderson v. Henderson, 41 Miss. 584; Solomon v. City Compress Co., 69 Miss. 319, 12 So. 339; I. C. R. R. Co. v. McGowan, 92 Miss. 603, 46 So. 55.

The court erred in refusing to permit the introduction of the rules and regulations of State Board of Health touching requirement of those delivering still-born fetus, making report of only those foeti which have attained at least five months' period of gestation. This rule was enacted under the authority granted under Section 4875, Code 1930. It was admissible in any event under Section 1564, Code 1930, because it would be evidentiary in supporting the fact that unless the baby was at least five months old no birth certificate would have been sent in at all. Courts cannot take judicial knowledge of the rules and regulations of the State Board of Health.

23 C. J. 1897 and 1959, note 70; N.Y.City Health Dept. v. City Real Property Ins. Co., 86 N.Y.S. 18; 26 N.E. 217.

Leonard B. Melvin, of Laurel, for appellee.

When this case was before this court on a former hearing this court reversed this case because the trial court excluded the vital statistics records, and with the light of that decision before the trial court on the second trial this evidence was admitted and the jury heard this evidence and passed upon it as the Supreme Court said the jury should do. This presented a direct issue of fact between the appellant and the appellee, which issue of fact has been decided in favor of the appellee by the jury.

Life & Cas. Ins. Co. v. Lena Walters, 177 So. 47, 180 Miss. 384; N.Y.Life Ins. Co. v. Turner, 97 So. 687.

It is true that the law provides that the facts contained in the birth certificate shall be deemed as prima facie evidence.

Appellant admits in its brief that if the testimony of the appellant is uncertain that this would be a question for the jury, but states that there is no uncertain testimony. The Vital Statistics Records are uncertain about the vital question asked. Dr. O. B. Crocker states that the fetus is about six months old, which answer was indefinite and uncertain. Does this kind of testimony meet the burden of proof imposed upon appellant? Appellant also states in its brief that if it is believed by the jury that the insured menstruated as testified to by plaintiff that this would only be proof that the insured was one of those women who menstruate while heavy with child. This may or may not be true, and it was the duty of the jury to determine this fact at issue.

Davis v. Gulf States Ins. Co., 151 So. 167; Tarver v. Lindsey, 137 So. 93; Sovereign Camp, W. O. W. v. Sirten, 175 So. 539; Mutual Ben. Health & Acc. Assn. v. Johnson, 186 So. 297.

If the instructions are contradictory as is argued by the appellant, the instruction requested by the appellant is not the law, and since it was requested by the appellant, how can the appellant here be heard to say that this court has erred in granting to it this instruction? Appellant states that the instruction granted to appellee is not the law, because there is no burden on the appellant to prove that the insured's death was the direct and proximate cause of said pregnancy. In making this argument to this court the appellant ignores the decisions and opinions of the Alabama Court in the cases of Sovereign Camp, W. O. W. v. Sirten, 175 So. 539, and Ladner v. Ladner, 139 So. 395.

On the trial of this case the appellant sought to introduce certain rules and regulations of the State Board of Health. It will be noted that these rules and regulations have never been declared the law of Mississippi, and there is no statute in Mississippi declaring these rules shall be the law in Mississippi. Section 4875, Code of 1930, simply gives the State Board of Health power to declare these rules evidence in the trial of any cause.

23 C. J., sec. 1897.

Briefs of counsel on motion not found.

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

McGowen, J., Griffith, J., on motion.

OPINION

McGowen, J.

Appellant appeals here from an adverse judgment in favor of appellee, Mrs. Lena Walters, the beneficiary in a life insurance policy.

This case has been before this court on a former appeal, 180 Miss. 384, 177 So. 47, 48, and was reversed and remanded because the court below erroneously excluded certificates from the records of vital statistics of the State Board of Health showing the facts with reference to the death of the insured, and of the birth of her stillborn child. The insurance company defended on the ground that the policy provided that it was not liable under its contract "if insured is pregnant at date of issue of policy and death results from such pregnancy."

The appellee introduced the contract of insurance, proved that it was in force at the date of the death of the insured, and that she had been named beneficiary by her daughter, Mrs. Naomi Walters Ainsworth. This daughter died on March 10, 1937, the cause of her death being puerperal sepsis, as disclosed by the proof of death sworn to by Mrs. Lena Walters. The policy of insurance was in force at her death, and was dated November 30, 1936.

The insurance company offered a certificate, duly certified to by the Vital Statistics Department of the State Board of Health, which disclosed that on March 4, 1937, Mrs. Naomi Walters Ainsworth gave birth to a stillborn male child. This certificate was made by Dr. O. B. Crocker, the attending physician. Therein, there was printed this query: "If stillborn, period of gestation, " and the physician's reply thereto was "about 6 mos."

For the appellant, Dr. Golden, as an expert physician, testified that puerperal sepsis was caused by childbirth, and also made this positive statement: "Lawyer, you can't have puerperal sepsis without having the delivery, that is what I want to get over to the court. When you have puerperal sepsis, you have got to have pregnancy and delivery before you have puerperal sepsis."

On cross-examination, the physician stated that the disease puerperal sepsis, was the...