Masson v. Met. Life Ins. Co.

• Decision Date: 01 December 1930
• Docket Number: No. 17004.,17004.
• Parties: IDA G. MASSON, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

36 S.W.2d 118

IDA G. MASSON, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLANT.

No. 17004.

Kansas City Court of Appeals. Missouri.

December 1, 1930.

Appeal from Circuit Court of Buchanan County. — Hon. Sam Wilcox, Judge.

AFFIRMED.

Mytton & Parkinson and Miles Elliott for respondent.

John C. Landis, Jr., and John C. Landis, III, for appellant.

CAMPBELL, C.

This is a suit upon a policy of life insurance in the sum of $1,000 issued by defendant to Burtin F. Masson, in which plaintiff, the assured's wife, is named as beneficiary. Plaintiff recovered judgment for the amount of the policy, penalties and attorneys' fees, and defendant appeals.

Appellent has not made attack upon the petition and reference to its allegations is, at this time, unnecessary.

Counsel for appellant conceded that plaintiff made a prima-facie case, and we will not at this time state in detail the evidence offered by her. At the close of the plaintiff's case the defendant, after moving unsuccessfully for a directed verdict, introduced evidence tending to show that the policy in suit lapsed for the nonpayment of the premium due on the first day of March, 1927; that re-instatement was applied for by assured on May 26, 1927, at which time the insured paid the premium then due in the sum of $22.08; that in the application for reinstatement it is stated that insured was then in sound health and that he had not had any illness or injury since the issuance of the policy, and that in event of untrue answer or statements therein the reinstatement would not be effective until two years thereafter except that defendant shall return to the insured, or his personal representative, all premiums paid since the date of reinstatement. It is claimd by defendant that its evidence showed that at this time insured was suffering from inflammation of the brain and that he died of that disease on the second day of the following June. Apart from expert testimony as to the possible duration of that disease, the only evidence, if such it may be called, tending to show that insured, at the time of reinstatement, was suffering from inflammation of the brain and that he died of that disease, is contained in defendant's Exhibit B. Defendant offered portions of the plaintiff's deposition in which it is stated that on the day following the death of her husband she went to defendant's office in St. Joseph and there received blank proofs of death; that one of those blanks was filled and signed by the physician who attended her husband in his last illness; that afterwards on the same day she took them back to the office of the defendant and tendered them to the person in charge and that said tender was refused.

The physician attending assured in his last illness, as defendant's witness, testified the insured called at his office on May 19, 1927, and that subsequent to that time, the exact time not being stated, he treated insured professionally until the time of his death; that he did not know whether he prepared Exhibit B at the request of plaintiff or at the request of a representative of defendant. The exhibit, over the objection of plaintiff, was admitted in evidence and it is therein recited that the insured died on June 2, 1927; that the cause of death was inflammation of the brain; that he continuously suffered therefrom during a period of twelve days immediately preceding his death, and that said attending physician was first called to visit decedent on May 20, 1927.

Appellant seeks to invoke the well-established rule that statements in proofs of death as to the cause of death, etc., furnished an insurance company by a beneficiary are conclusive and binding unless explained. [State ex rel. Thomas v. Trimble, 303 Mo. 266, 280.] The rule stated seems to be well established, but the question in this case is, does the proof (Exhibit B) bring the case within the rule? There is no evidence that plaintiff furnished the proof referred to or any proofs to defendant. On the contrary, it is shown that she tendered proofs and that the same were refused. There is no evidence that defendant or any of its representatives ever had any knowledge of the statements contained in Exhibit B until during the trial of the cause.

In this connection, the defendant's amended answer is important. It is therein alleged that it was plaintiff's duty, under the terms of the policy, to furnish proofs of death on forms provided by defendant; that defendant did furnish the forms but that plaintiff "failed and refused to present said proofs to this defendant." Having answered that plaintiff had failed to make proofs, defendant ought not be allowed to claim that the blank form filled up by the attending physician and retained by plaintiff until it was brought to light by the defendant's notice to produce, is proof of death within the meaning of the decisions referred to. Plaintiff did not furnish proofs of death to the defendant and there is, therefore, no evidence on which to base the contention that plaintiff is bound by the statements contained in the paper signed by the attending physician, and which was never in the custody or possession of defendant. The exhibit, in the circumstances, was nothing more than the ex parte statement of defendant's witness.

In 22 C.J. 308, it is said:

"Where a document is of a character ordinarily delivered to another person, but it has never been delivered, it may fairly be contended that statements therein were in effect never made, and hence do not constitute admissions which are receivable in evidence."

Appellant contends the burden of proof was on plaintiff to show that the insured, was in sound health at the time of reinstatement. The defense is an affirmative one, to the effect that insured made false representation as to his health, and the burden was on defendant to make out its defense. [Burgess v. Pan-American Life Insurance Company, 230 S.W. 315, 321.]

Defendant's witness, the attending physician during the last illness of the assured, was asked to state whether he treated the insured for the disease of which he died from the 20th day of May until the date of his death. Objection to the question was sustained and defendant then made offer to prove by the witness that he was called to treat the insured on the 19th day of May; that insured was then suffering from inflammation of the brain and that disease caused his death; that the witness treated the insured continuously from the 19th day of May until the date of his death. Upon plaintiff's objection the offer was excluded and that ruling is assigned as error. The offer was properly excluded. The offer shows that it was an attempt to prove by the attending physician the knowledge he acquired and needed to acquire in order to treat the patient. [Section 5418, R.S. 1919; Hicks v. Metropolitan, 190 S.W. 661; Chadwick v. Company, 256 S.W. 501.] Later in the trial and after plaintiff had testified that her husband was working on the day of the date of the application for reinstatement, the physician was recalled and defendant offered to prove by him that he called at the home of the insured on the 25th and 26th day of May, 1927, and on each of said dates found insured sick and unable to work or perform any manual or other labor. The offer was excluded. Defendant then offered to prove by the witness that from his personal knowledge gained by visiting insured on the 25th and 26th days of May, the insured was not...