Prince v. Metropolitan Life Ins. Co.

Decision Date06 June 1939
Docket NumberNo. 25002.,25002.
Citation129 S.W.2d 5
PartiesPRINCE v. METROPOLITAN LIFE INS. CO.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Thomas L. Anderson, Judge.

Action by Thomas Prince against the Metropolitan Life Insurance Company to recover on industrial life policy, brought before a justice of the peace. Plaintiff obtained judgment in the justice court and upon trial de novo on appeal in circuit court. From the judgment, defendant appeals.

Reversed and remanded.

Fordyce, White, Mayne, Williams & Hartman and R. E. LaDriere, all of St. Louis (Harry Cole Bates, of New York City, of counsel), for appellant.

S. E. Garner, of St. Louis, for respondent.

BECKER, Judge.

This action was filed before a justice of the peace to recover on an industrial policy of insurance, and was defended upon the ground that the insured was suffering from diabetes at the time of the issuance of the policy, which disease contributed to her death.

Plaintiff obtained judgment against defendant in the justice court, and upon trial de novo on appeal in the circuit court a verdict resulted for plaintiff for the face of the policy with interest and attorney's fees. Defendant in due course appeals.

The amended petition upon which the case was tried was conventional, alleging that the policy had been issued to Zolia Prince, wife of plaintiff, on June 15, 1936, and was payable to her estate; that the insured died on July 24, 1936, and that said policy was in full force and effect on said date; that plaintiff, on October 22, 1937, applied for and obtained refusal of letters of administration upon the insured's estate from the Probate Court of the City of St. Louis, Missouri; that demand had been made upon defendant for payment of the amount specified in said policy, and that payment had been refused; that said refusal was for vexation and delay only, and prayed judgment for the face of the policy with interest and attorney's fees.

It is conceded that plaintiff made a prima facie case. On behalf of the defendant, the proofs of death filed by plaintiff were offered in evidence, which proofs, made up of various affidavits attached together, were marked defendant's exhibits 1, 2, 3, 4 and 5.

When defendant offered these exhibits in evidence counsel for plaintiff made an objection seeking to limit the proofs of death solely to those things which went "to show the cause of death, to that extent I won't object to them." The court overruled the objection and plaintiff noted no exception thereto.

Defendant adduced testimony to the effect that the forms for each of these exhibits had been given to Thomas Prince, plaintiff, as claimant under the policy sued upon herein, and that he had them filled out and turned in to the company as and for his proofs of death in the matter.

Defendant's exhibits 3 and 5 of the proofs of death were the sworn statements of Dr. Henry A. Hampton and Dr. J. Owen Blache. Each of these statements was headed: "It is hereby admitted and agreed that this certificate * * * shall be considered as part of the proof of death under policy 124,206,297 in accordance with the conditions of said policy." This agreement in each of said exhibits was signed by Thomas Prince, claimant.

The affidavit of Dr. Henry A. Hampton (defendant's exhibit 3), among other things, stated that he had attended the insured Zolia Prince from December 11, 1935, to December 22, 1935, for diabetes mellitus. The affidavit of Dr. J. Owen Blache (defendant's exhibit 5) stated that he had performed an autopsy upon the body of Zolia Prince, the insured, and while the cause of death was noted therein as bronchial pneumonia, and as a contributory or secondary cause, "Bilateral Cystic Ovaries about 7 months," the affidavit carries the further statement that he had attended the deceased "from 12-11-35 to 12-22-35 for diabetes mellitus. * * *"

Dr. J. Owen Blache was called as a witness by defendant and during his examination the court permitted defendant's exhibits 1, 2, 3, 4 and 5 to be read to the jury. Dr. Blache testified that he had made a post-mortem on the body of Zolia Prince and that he found that she had bronchial pneumonia and bilateral cystic ovaries and a history of diabetes. Over the objection of counsel for plaintiff the witness was permitted to answer the question whether or not "doctor, in your opinion, based upon your findings and the assumption that diabetes mellitus was in existence in December, 1935, whether that disease, diabetes mellitus, actually contributed to her death in July, 1936?" Dr. Blache answered that "* * * from the history given to me it is my opinion that the diabetes mellitus was the contributing cause of death."

At this juncture, after some colloquy, the court made a ruling which in effect sustained a renewed objection of counsel for plaintiff to strike out defendant's exhibit 3, the affidavit of Dr. Hampton, which had already been introduced in evidence and had been read to the jury, and concerning the information contained therein, Dr. Blache had theretofore been examined in chief and cross-examined by counsel for plaintiff. Thereafter counsel for defendant "withdrew from evidence" defendant's exhibit 5, being the affidavit of Dr. Blache, which was part of plaintiff's proof of death.

At the conclusion of the case and after the court had overruled an instruction asked by defendant in the nature of a demurrer to the evidence, upon written motion of counsel for plaintiff, the court struck out all of the testimony that had been given by defendant's witness Dr. Blache. Defendant duly excepted to this ruling. Thereupon counsel for defendant was permitted, with the consent of counsel for plaintiff, to re-introduce in evidence and again read to the jury Dr. Blache's affidavit (defendant's exhibit 5).

The policy herein sued on contained a provision that "if, (1) the insured is not alive or is not in sound health on the date of issue hereof * * * then, in such case, the company may declare this policy void and the liability of the company in the case of any such declaration or in the case of any claim under this policy, shall be limited to the return of the premiums paid on the policy. * * *"

We are confronted at the outset, on this appeal, with the question as to whether or not, in light of our ruling in Fields v. Metropolitan Life Ins. Co., Mo.App., 119 S. W.2d 463, this provision in the policy herein sued on is available to the insurer after the death of the insured.

Life policies are liberally construed in favor of the insured and against the insurer, but such contracts...

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