Metropolitan Life Ins. Co. v. Wagner

• Decision Date: 19 February 1908
• Citation: 109 S.W. 1120
• Court: Texas Court of Appeals
• Parties: METROPOLITAN LIFE INS. CO. v. WAGNER.

109 S.W. 1120

METROPOLITAN LIFE INS. CO. v. WAGNER.

Court of Civil Appeals of Texas.

February 19, 1908.

On Rehearing, April 15, 1908.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Mrs. Agnes Wagner against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded on rehearing.

This suit was brought on October 16, 1905, by Mrs. Wagner, against the Metropolitan Life Insurance Company, on an insurance policy issued by the company on March 2, 1903, in her favor for $1,500, on the life of her husband, Frederick Wagner, who died on December 1, 1904, while the policy was in full force and effect. In addition to the principal stipulated in the policy, the plaintiff asked judgment for $500 attorney's fees, and 12 per cent. of the amount of the insurance as statutory damages. The defendant answered by a general demurrer, a general denial, and specially pleaded the failure of plaintiff to make and furnish proof of death in accordance with the terms and conditions expressly provided by the policy, and that the insured died by his own hand or act within two years from the issuance of the policy, in which it was expressly provided that, in such event, the company should not be liable for a greater sum than the premiums received. The case was tried before a jury, who returned a judgment in favor of the plaintiff for $1,500, with interest thereon at the rate of 6 per cent. per annum, from June 15, 1905, together with 12 per cent. on the principal and $300 attorney's fees. There is no controversy about the issuance of the policy as alleged, nor as to the death of the assured at the time averred, the only issues of fact being those raised by defendant's special pleas.

The payment of the insurance is, by the terms of the policy, subject to certain conditions set forth on the reverse side thereof, among which are the following: "Second * * * If the insured within two years from the issue hereof die by his own hand or act, whether sane or insane, the company shall not be liable for a greater sum than the premiums which have been received on this policy." "Sixth. Proofs of death shall be made to the home office in the manner and to the extent required by blanks furnished by the company, and shall contain answers to each question propounded to the claimants, physicians and other persons indicated in the blanks, and shall further contain the record and verdict of the coroner's inquest, if any be held. The proofs of death shall be evidence of the facts therein stated in behalf of but not against the company." The policy upon its face makes the receipt by the company at its home office, and its approval of the proofs of death of the insured, made in the manner, to the extent, and upon the blanks required by the above condition, conditions precedent to its payment. The assignments of error will be considered in view of this preliminary statement of the pleadings and evidence, and such additional evidence as pertains to the assignments of error will be stated and considered in disposing of them.

Keller & Keller, for appellant. W. A. Wurzbach and S. C. Eldridge, for appellee.

NEILL. J. (after stating the facts as above).

1. After the most careful scrutiny we are unable to detect the slightest relevancy of either letter written by A. Robeson to plaintiff, which were introduced in evidence by her over objections of defendant, to any issue in this case. Though we cannot perceive the object of such testimony, plaintiff must have had something which she deemed it to her advantage to effect in placing the letters before the jury. And, as it devolves upon the party who has introduced inadmissible testimony to show that it was not prejudicial, or could not probably affect the verdict, which plaintiff has failed to show, the prima facie ground for the reversal of the judgment, on account of such error, obtains.

2. We are equally at a loss to discover the relevancy of the testimony of plaintiff's counsel (Mr. Wurzbach) to the effect that he went into the company's office at San Antonio, and was informed by Mr. Robeson, its agent and superintendent, that word had been received from the main office at New York that the company refused to pay the policy, or any part of it, except to return the premiums, because the insured had committed suicide, and that thereupon he, Wurzbach, filed suit upon the policy, or the purpose of its introduction, unless it were to show that the company had waived the omission from the proofs of death, furnished by plaintiff, of the record and verdict of the coroner's inquest, and predicated its refusal to pay solely upon the ground that Frederick Wagner had died of his own hand or act, without making any point upon the failure of plaintiff to attach the record and verdict of the coroner to the proofs of death furnished the company. We do not understand that stating one ground for refusing to pay a policy necessarily involves a waiver of every other ground of defense against its payment. But however this may be, such facts as constitute a waiver of any defense against a demand on a policy of insurance must be specially pleaded; and, as no such waiver was pleaded by plaintiff, evidence tending to prove it was inadmissible.

3. Ordinarily the verdict of a coroner's jury is inadmissible, in this state, to prove the cause of death (Boehme v. Sovereign Camp W. of W., 98 Tex. 376, 84 S. W. 422); but when, as in this case, it is expressly provided by the policy that proofs of death "shall contain the record and verdict of the coroner's inquest, if any be held," and "the proofs of death shall be evidence of the facts therein stated in behalf of * * * company," a different question is presented. The undisputed evidence shows that a coroner's inquest was held over the insured's dead body; that a record of the proceedings was made, and that it was expressly found by the coroner: "That some time during the 1st day of December, 1904, the said Frederick Wagner, with suicidal intent, in said county and state, did cut himself on the bend of the right elbow, inflicting a wound 2½ inches in length, which probably caused a severance of the ulnar artery, and 11 distinct punctures within an area of 2 inches in the region of the left nipple, all apparently made by a penknife, from the effects of which said wounds the said deceased died, at the time and place hereinbefore stated," which was certified to, as well as proved by the depositions of the coroner himself; and that neither the record nor verdict was attached to the proofs of death furnished by the plaintiff to the defendant. In view of these facts the record and verdict of the inquest, when offered in evidence by the defendant, should not have been excluded upon the objection of plaintiff that the proceedings were ex parte. There can be no doubt that the record of such proceedings, which were duly proved and attested, was evidence of the fact that the inquest was held, and a record of the proceedings was preserved. This, in connection with the proofs of death furnished by plaintiff, would have conclusively shown that such proofs were not made in compliance with the provisions of the policy, and there can be no question as to its admissibility as evidence to establish such fact. But in view of the stipulation in the policy referred to, if it were shown that plaintiff knew of such proceedings, and could have obtained the record, and willfully refused to attach it to the proofs of death, we would not be prepared to hold that the record of such proceedings was not evidence of the fact that deceased came to his death by his own hand. If the record had been attached to the proofs of death, as was required by the express terms of the policy, it would, under the agreement between the insurer and assured, have been evidence for the former of such fact. And we are not inclined to hold that the beneficiary in the policy, by willfully omitting from the proofs the record of the proceedings, in violation of its express terms, can deprive the defendant of evidence that was expressly agreed upon by the parties to the contract. See Walther v. Mutual Ins. Co., 65 Cal. 417, 4 Pac. 413; Taylor v. Ætna Life Ins. Co., 79 Mass. 434; Knights Templars' & Masons' Life Indemnity Co. v. Crayton, 209 Ill. 550, 70 N. E. 1066; 2 Wigmore on Ev. § 1073, note 5.

4. The fourth, fifth, sixth, and seventh assignments are directed against the action of the court in excluding certain portions of the answers, in the deposition of the witness Dr. B. J. Edgar, to interrogatories offered in evidence by the defendant. As these assignments embrace similar questions, and are determinable by the same principles of law, they will be considered together. Preliminary to their consideration, it is deemed advisable to state from the record certain undisputed facts regarding the deceased, and in relation to his death, in order that the nature of the questions presented for decision may clearly appear, and our opinion upon them be fully apprehended: The insured was commissary sergeant in the Subsistence Department of the United States Army stationed at Ft Brown in Cameron county, Tex., at the time of his death, which was December 1, 1904. On that day his body, clothed in a white shirt, was found lying on the ground, in the National Cemetery at Brownsville, behind a clump of bushes near a bridge, on a road leading to the Rio Grande. He was lying on his back, with 11 punctures in a radius of 2 inches in the region of the left nipple, 7 or 8 wounds on his left forearm, and also a wound 2½ inches long about half an inch above the flexure of the right elbow joint, which severed the ulnar artery. His shirt was open or torn from his breast, leaving the left breast bare, and a piece of cloth had been torn from his shirt. His arms were extended parallel with his body, the sleeve on the right arm having been rolled up, and a bloody pocketknife was...