Nat'l Life & Accident Ins. Co. v. Roberson

• Decision Date: 02 October 1934
• Docket Number: Case Number: 22809
• Citation: 1934 OK 496,169 Okla. 136,36 P.2d 479
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. ROBERSON.
• Court: Oklahoma Supreme Court

1934 OK 496

36 P.2d 479

169 Okla. 136

NATIONAL LIFE & ACCIDENT INS. CO. v. ROBERSON.

Case Number: 22809

Supreme Court of Oklahoma

Decided: October 2, 1934

Syllabus

¶0 1. Insurance--Action on Life Policy--Non. liability Where Insured not in Good Health on Date Policy Issued.

Where an insurance policy contains a provision that the insurance company assumes no obligation unless on the date of the policy the insured is alive and in good health, there can be no recovery thereon when insured was not in sound health on the date of the issuance of the policy unless this provision is waived.

2. Same--Burden on Insurer to Show Lack of Sound Health.

In an action on a policy containing such a provision, the burden is on the insurer to show that insured was not in sound health on the date of the issuance of the policy.

3. Same--Fraudulent Statements by Insured in Application as Defense Though Application not Attached to Policy nor Referred to Therein.

Where an application for life insurance is not attached to or made a part of the policy and no reference to the application of the insured either as a part of the policy or as having any bearing thereon is made in the policy, the insurance company is not debarred by section 10519, O. S. 1931, from proving as a defense to an action on the policy that the statements made therein are willfully false, fraudulent, or misleading, and may introduce the application in evidence, and the burden of proof upon such issue is upon the insurance company.

4. Evidence--Action on Life Insurance Policy--Inadmissibility of Records of City Health Department.

The records made and kept by Oklahoma City health department are not admissible in evidence in an action on a life insurance policy merely because they are public records required to be kept by law.

5. Evidence--Admissibility of X-Ray Plates--Preliminary Evidence Required.

Before X-ray plates are admissible in evidence, it must be shown by a qualified witness that the process used in making the plates will give a correct representation, and that such plates are a true representation of the object shown therein.

6. Insurance--Action on Life Policy--Instructions Held Erroneous.

Instructions examined, and held, that the court committed error:

(a) In failing to submit to the jury the question whether insured was alive and in sound health on the date of the policy

(b) In restricting the issue as to the falsity of the answers made by the insured in the application for insurance to the question whether on the date of the application the insured was afflicted with pulmonary tuberculosis alone.

Appeal from District Court. Oklahoma County; Lucius Babcock, Judge.

Action by Gerte E. Roberson against l he National Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

William M. Franklin, for plaintiff in error.

Conner & Conner, for defendant in error.

PER CURIAM.

¶1 On September 4, 1929. Mattie E. Suggs made written application to the National Life & Accident Insurance Company, hereinafter called defendant, for a policy of insurance. In her application she stated that she had not had certain enumerated diseases, including tuberculosis, and that medical attention had by her during the preceding five years was in June, 1929, when she was treated for influenza.

¶2 On September 16, 1929, a policy was issued. Thereafter, on April 13, 1930, said Mattie E. Suggs died of pulmonary tuberculosis in the Western Oklahoma State Tuberculosis Sanitarium, at Clinton, Okla., and Gertie E. Roberson, hereinafter called plaintiff, daughter of insured and beneficiary, tiled claim with proofs of death attached, and defendant denied liability. Thereafter, plain. tiff commenced this action in the district court of Oklahoma county to recover on the the policy. Defendant answered, alleging that the statements in the application above referred to were willfully false, fraudulent, and misleading, and that deceased was not in sound health on the date of the policy. The trial resulted in a verdict and judgment for plaintiff, from which this appeal is prosecuted.

¶3 The policy contained this provision-

"No obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive, and in sound health. Should the proposed insured not be alive or not be in sound health on the date hereof, any amount paid the company as a premium shall be returned."

¶4 In support of its contention that insured was not in sound health on the date of the policy and that the statements in the application were willfully false, fraudulent, and misleading, defendant offered to prove by Dr. W. H. Elmore that he treated deceased for tuberculosis and other ailments in July before she applied for the insurance, and that she was compelled to quit work during said period because of her condition. Defendant also offered the deposition of Dr. E. E. Darnell to prove that he examined deceased when she was admitted to the Western Oklahoma State Tuberculosis Sanitarium in April, 1930, and obtained from her a history of her ailment; that deceased told him she had a chest examination in June, 1929, and a diagnosis of tuberculosis, and that she stopped work at that time; that she was last in good health 13 years before, when she had measles and an abdominal operation; that she had lost 15 or 20 pounds since June, 1929, and had a small hemorrhage before admission to the sanitarium; that she gave a history of cough, night sweats, fever, loss of strength, pain in chest, pleurisy, difficult breathing, indigestion, diarrhea and hoarseness since June, 1929. That in his opinion she was in an advanced stage of tuberculosis and had been in such condition about a year before she was admitted to the sanitarium. This evidence was excluded on the ground that same was privileged under subdivision 6, section 272, O. S. 1931.

¶5 In the application for insurance signed by deceased, the following provision is contained:

"I expressly waive on behalf of myself and of any person who shall have or claim any interest in any policy issued hereunder all provisions of law forbidding any physician or other person who has attended or examined me, or who may hereafter attend or examine me, from disclosing in the courts or otherwise, any knowledge or information which he thereby acquired; and I hereby specifically authorize all such persons to freely communicate their knowledge to the company, if it request them so to do."

¶6 The above provision in the application for insurance constituted a waiver of the privileged character of the testimony which was binding on plaintiff, and the exclusion of such evidence was error. Oklahoma Protective Ass'n v. Montgomery, 160 Okla. 135. 16 P.2d 135.

¶7 The stipulation of counsel, made at the time the deposition of Dr. Darnell was taken, that objections to the testimony of said witness might be made at the trial instead of at the time of taking the depositions with the same force and effect as if made at the time of taking the depositions, did not waive the above provision in the application for insurance.

¶8 Defendant also offered in evidence the record and history of the deceased as made and kept by Oklahoma City health department, and sought to prove the authenticity of these records by Minnie A. Thomas, the superintendent of the nursing bureau of said health department, who testified that same were public records but were not made by her, being made by other nurses ill the department. Included in said records were X-ray photographs of the lungs of the deceased made prior to the time she applied for insurance. The court excluded this evidence, and in this there was no error. Defendant cites no authorities in support of its contention that said records were admissible upon the ground that they were public records required to be kept by law. The admissibility of such evidence has been passed upon by the courts a number of times, and by the weight of authority is held inadmissible under the circumstances here presented. Jordan v. Apter, 93 Conn. 302, 105 A. 620; Chernov v. Blakeslee, 95 Conn. 617, 111 A. 908; In re Hock's Will, 74 Misc. 15, 129 N.Y.S. 196; Meyer v. Nassau Elec. R. Co., 152 A.D. 709, 137 N.Y.S. 529; Harkness v. Borough of Swissvale, 238 Pa. 544, 86 A. 478; Sovereign Camp. W. O. W., v. Grandon (Neb.) 64 Neb. 39, 89 N.W. 448.

¶9 The preliminary facts necessary to be shown in order to admit X-ray films are stated by this court in Bartlesville Zinc Co. v. Fisher, 60 Okla. 139, 159 P. 476, where this court said;

"The admission of X-ray plates in evidence rests fundamentally on the theory that they are the pictorial communication of a qualified witness who uses this method of conveying to the jury a reproduction of the object of which he is testifying; this being true, the X-ray plates must be made a part of some qualified witness, testimony and the witness should qualify himself by showing that the process is known to

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