State ex rel. John Hancock Mut. Life Ins. Co. v. Hughes

• Decision Date: 30 October 1941
• Docket Number: 37568
• Citation: 155 S.W.2d 250,348 Mo. 829
• Parties: State of Missouri at the relation of John Hancock Mutual Life Insurance Company, a Corporation, Relator, v. William C. Hughes, Edward J. McCullen and Lyon Anderson
• Court: Missouri Supreme Court

155 S.W.2d 250

348 Mo. 829

State of Missouri at the relation of John Hancock Mutual Life Insurance Company, a Corporation, Relator, v. William C. Hughes, Edward J. McCullen and Lyon Anderson

No. 37568

Supreme Court of Missouri

October 30, 1941

Writ quashed.

Leahy Walther & Hecker and John S. Leahy, Jr., for relator.

(1) In view of the proofs of death furnished by the plaintiff beneficiary under the policy in controversy, and the physician's statements, which were part thereof, which statements showed the existence of the disease, from which insured died, prior to the date of the issuance of the policy, plaintiff was not entitled to recover. Kirk v Met. Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; State ex rel. Bowden v. Allen, 337 Mo 260, 85 S.W.2d 63. (2) The evidence introduced at the time of trial both by plaintiff and defendant, was not contradictory, but, when regarded as a whole, was consistent and allowed but one reasonable inference therefrom. Lacking any contradiction, and being of a documentary, as well as of a parol nature, it was error to submit the evidence to the jury on questions of fact. Kirk v. Met. Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; State ex rel. Bowden v. Allen, 337 Mo. 260, 85 S.W.2d 63.

Julius L. Block, Cecil Block and John P. Griffin for respondents.

(1) This court is only concerned with the question whether there is a conflict between the decision of respondents and the last controlling decision of this court on the same point. State ex rel. Cox v. Trimble, 312 Mo. 322, 279 S.W. 60. (2) The relator offered in evidence the proof of death made by claimant, which showed the insured was only ill from June 18, 1938, to June 20, 1938, date of death, and was signed by claimant and Dr. Aronberg, but in Relator's Exhibit A-1, Dr. Aronberg's Statement, he said four years, which was based on hearsay, because he saw him two days before for the first time, and the plaintiff, having made a prima facie case, by offering the policy in evidence, and the death being admitted, the relator had the burden to defeat the claimant's prima facie case, and it certainly did not carry its burden by the vague, oral, uncertain, hearsay, and self-contradictory testimony in this record, and the opinion is not in conflict with the rule of this court. Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; State ex rel. Strohfeld v. Cox, 325 Mo. 901, 30 S.W.2d 462; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. (a) Hospital records are notes written down by clerks, nurses, and doctors, seldom by the doctor in charge of the case, and only hearsay, in the language of the person making the note, and because public institutions are required to keep a record, are admissible as an exception to the hearsay rule, but, of course, subject to the measuring stick of probative value both as to whether the diagnosis was correct and correctly recorded, therefore, if there is any conflict, it is for the jury. They are not within the documentary evidence rule. Johnson v. Mo. Ins. Co., 46 S.W.2d 959. (b) Hospital records are hearsay. Allen v. American Life & Acc. Ins. Co., 119 S.W.2d 450.

OPINION

Gantt, P. J.

Certiorari to quash the opinion of a court of appeals in Poignee v. John Hancock Mutual Life Ins. Co., 147 S.W.2d 677. The action is on a policy issued by defendant. The answer alleged that the insured, at the time of the issuance of the policy, was a diabetic and for that reason the contract of insurance is void under the sound health clause of the policy. The verdict was for the plaintiff. Judgment was accordingly entered and defendant appealed. The court of appeals affirmed the judgment. The facts for consideration are stated by relator (defendant) as follows:

"The uncontroverted evidence showed that defendant's policy of life insurance was issued on the life of George Poignee on July 14, 1937, and that plaintiff below, Emma Poignee, was named therein as beneficiary; that the insured died on June 20, 1938, and that the cause of death was diabetes mellitus. Plaintiff below furnished proofs of death as required under the terms of the policy here in controversy, and agreed therein that the physician's certificate submitted together with the proof of death, would be considered as part of the proof of death. Such a certificate was submitted by plaintiff below at the time that her signed proof of death was submitted. This physician's certificate was signed by...