Metropolitan Life Ins. Co. v. Ryan
| Decision Date | 08 June 1943 |
| Citation | 172 S.W.2d 269,237 Mo.App. 464 |
| Parties | Metropolitan Life Insurance Company, Appellant, v. Patrick J. Ryan and Regina Ryan, His Wife, Respondents |
| Court | Missouri Court of Appeals |
Appellant's Motion for Rehearing Denied June 25, 1943.
Appeal from the Circuit Court of St. Louis County; Hon. John J Wolfe, Judge.
Affirmed.
Fordyce, White, Mayne, Williams & Hartman and R. E LaDriere for appellant.
Harry Coles Bates of counsel.
Judgment should have been entered for plaintiff for cancellation of the policy of insurance for the following reasons: (a) With the application for the policy and the proofs of claim in evidence, misrepresentations by the insured and that such misrepresentations concealed a condition which caused the disability are conclusively shown, because there was no denial or contradiction thereof. Smiley v. John Hancock Life Ins. Co., 52 S.W.2d 12, 14; Walker v. Nat. Life & Acc. Ins. Co., 130 S.W.2d 668, 669; Schriedel v. John Hancock Life Ins. Co., 133 S.W.2d 1103; Prince v. Met. Life Ins. Co., 235 Mo.App. 168, 129 S.W.2d 5; Bailey v. Am. Life & Acc. Ins. Co., 96 S.W.2d 903; Farage v. John Hancock Life Ins. Co., 229 Mo.App. 698, 81 S.W.2d 344; Burgess v. Pan American Life Ins. Co., 230 S.W. 315; Ryan v. Met. Life Ins. Co., 30 S.W.2d 190. (b) And the rule applies to the present case notwithstanding the mental condition of the insured. Queatham v. Modern Woodmen of America, 148 Mo.App. 33, 127 S.W. 651. (c) Privilege between physician and patient was waived by the circumstances disclosed, without objection, in the commitment hearing in the county court on March 19, 1941. In the Matter of John Baird, 11 N.Y. 263; In re Gates, 154 N.Y.S. 782, 170 A.D. 921; In re McMenamy's Guardianship, 270 S.W. 662; McClenahan v. Keyes, 188 Cal. 574, 206 P. 454; In re Benson, 16 N.Y.S. 111; Epstein v. Railroad, 250 Mo. 1, 156 S.W. 699; In re Moynihan, 62 S.W.2d 410; Boydston, Guardian, v. Bank of Camden Point (Mo. App.), 141 S.W.2d 86; Hodge v. St. Louis Union Trust Co. (Mo.), 261 S.W. 67; Rock v. Keller, 312 Mo. 458, 278 S.W. 759; Davenport v. City of Hannibal, 108 Mo. 471, 18 S.W. 1127; State v. Powell, 217 S.W. 35; Yawitz v. Laughlin's Estate, 68 S.W.2d 830; Oliver v. McFarland, 282 S.W. 735; Imboden v. Trust Co., 111 Mo. 220, 86 S.W. 263; Jones v. Prudential Ins. Co., 173 Mo.App. 1, 155 S.W. 1106; People v. Bloom, 109 N.Y.S. 344, 124 A.D. 767, affirmed 85 N.E. 824, 193 N.Y. 1, 18 L. R. A. (N. S.) 898, 127 Am. St. Rep. 931; Ryan v. Met. Life Ins. Co., 30 S.W.2d 190; State v. Long, 257 Mo. 199, 165 S.W. 748. (d) With privilege waived, the testimony of Dr. Pranger in the trial below should have been admitted, and, there being no contradiction thereof, judgment should have been entered for the plaintiff for cancellation of the policy. (e) The failure of Regina Ryan, the wife of Patrick J. Ryan, to testify in the case raises a presumption or inference against the defendants. Baker v. C. B. & Q. Rd. Co., 39 S.W.2d 535; State ex rel. Wabash v. Trimble, 260 S.W.2d 1000; Guthrie v. Gillespie, 6 S.W.2d 886.
James E. Crowe for respondents.
(1) To secure cancellation of a policy for fraud or mistake, evidence must be clear and convincing. Security Life Ins. Co. v. Stockman, 242 S.W. 103; Guaranty Life Ins. Co. v. Frumson, 236 S.W. 310; Met. Life Ins. Co. v. Underwood, 256 S.W. 232. (2) Failure to testify does not raise any presumption against an insane defendant. (3) Privilege between physician and patient was not waived by the testimony of said physician being given without objection at a county court hearing under sec. 9335, R. S. Mo. 1939. In re Benson, 16 N.Y.S. 111; Epstein v. Pa. R. R. Co., 156 S.W. 609, 705; 40 Cyc. 2389; 70 C. J., sec. 610, p. 450; State v. Murphy, 205 Iowa 1130, 217 N.W. 225; In re Flemming, 196 Iowa 639, 195 N.W. 143; In re Harmsen, 167 N.W. 618; In re Moynihan (Mo.), 62 S.W.2d 410; Spotts v. Spotts (Mo.), 55 S.W.2d 977, 983; In re Brewer (Iowa), 276 N.W. 770; 2 Jones' Comm. on Evid. (2 Ed.), p. 975; Quetham v. Modern Woodmen of America, 148 Mo.App. 133, 127 S.W. 651; Mackey v. Schreckengaust, 27 S.W.2d 752.
This is an action, commenced on November 22, 1941, to cancel a policy of life and disability insurance issued to Patrick J. Ryan on December 4, 1939. Regina Ryan is the wife of Patrick J. Ryan and was named in the policy as beneficiary of the life insurance. James E. Crowe was appointed by the court as guardian ad litem for Patrick J. Ryan.
In the application upon which the policy was issued the insured stated that his state of health was good and that his last sickness was a common cold; that he had no physical or mental defect or infirmity and had never had syphilis or spinal disease.
Plaintiff charges that these statements were false and were falsely and fraudulently made, and by reason thereof seeks cancellation of the policy.
The trial resulted in a judgment for defendants, and plaintiff appeals.
The policy insures the life of Patrick J. Ryan in the sum of $ 1800, payable in thirty-six monthly installments of $ 50 each, upon receipt of due proof of the death of the insured. It provides that the right on the part of the insured to change the beneficiary is reserved. It further provides that "upon receipt by the company at its home office in the City of New York of due proof in writing that the insured has become totally and permanently disabled as here defined and under the conditions and provisions herein stipulated, it will waive the payment of each premium becoming due under the policy during the continuance of such disability."
Proof of disability, consisting of three papers, was made out and forwarded to the company at its home office, and was received by the company at its home office on October 27, 1941. It appears that these papers were forwarded to the company by defendant Regina Ryan. The papers consisted of questions and answers made out upon printed blanks furnished by the company. One of these papers is a statement purporting to have been made and signed by the insured, Patrick J. Ryan. It was, however, in fact made out by defendant Regina Ryan, who signed the insured's name to it. There is nothing in this statement tending to prove the charges of fraud made against the insured by the plaintiff. The statement is dated October 22, 1941. Another paper designated as the attending physician's certificate was made out and signed by Dr. S. H. Pranger. This paper is dated October 17, 1941. Another paper also designated as the attending physician's certificate was made out and signed by Dr. Emmett L. Hoctor. This paper is dated October 16, 1941.
Dr. Pranger in his certificate stated that he was first consulted by the insured on July 11, 1939; that his last treatment was on March 20, 1941; that the cause of the disability was syphilis, cerebral and spinal; that his diagnosis as finally made was paresis due to syphilis; that the symptoms he observed during his attendance were mental aberrations; that the prognosis was favorable; that the date of the onset of the illness was July, 1939; that the insured had been totally disabled since March 1, 1941.
Dr. Hoctor, who was superintendent of the State Hospital at Farmington, in his certificate stated that he was first consulted by the insured on March 25, 1941; that he had been treating the patient daily since March 25, 1941; that the cause of insured's disability was general paresis; that the onset of insured's illness was approximately on March 25, 1941; that the patient's condition has shown recent moderate improvement; that he has been continuously confined in the State Hospital at Farmington; that he has been totally disabled since March 25, 1941.
These papers were offered in evidence by plaintiff but were excluded by the court on objection of the defendants.
Upon an inquisition held in the County Court of St. Louis County, on March 19, 1941, the insured was adjudged insane and a fit subject to be sent to the State Hospital at Farmington, and was ordered committed to said hospital. Mr. Hartwell Crain was appointed as attorney to represent the insured at the hearing. The inquisition was based upon the affidavit of defendant Regina Ryan. Dr. Pranger was produced as a witness and testified at the hearing without objection with respect to his treatment of the insured and what his condition was.
Dr. Pranger was produced as a witness by plaintiff at the trial of the present case and plaintiff offered to prove by him that the insured came to him for treatment on July 11, 1939; that the doctor made tests at that time from which he found that the insured had syphilis and he informed him of it; that he continued to treat the insured until he was committed to the hospital at Farmington; that in March, 1941, this syphilitic condition developed into paresis. On objection of the defendants the doctor was not permitted to testify.
Plaintiff company assigns error here for the exclusion of the physicians' certificates forwarded to the company as a part of the proofs of disability.
Ordinarily statements of a physician furnished by the beneficiary as a part of the proofs of death or furnished by the insured as a part of the proofs of disability are admissible in evidence as admissions. Such statements cannot be excluded on the ground of privilege arising from the confidential relation existing between the physician and his patient. [Fitzgerald v. Metropolitan Life Ins. Co. (Mo. App.), 149 S.W.2d 389, l. c. 391.]
In the present case the statements of the physicians were furnished as part of the proofs of the insured's disability. They were made and furnished by the insured's wife. He did not authorize the making of the proofs and knew nothing of them. He was at the time insane and confined in the...
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