Thrower v. Life & Casualty Ins. Co. of Tennessee

• Decision Date: 04 June 1940
• Docket Number: No. 25434.,25434.
• Citation: 141 S.W.2d 192
• Parties: THROWER v. LIFE & CASUALTY INS. CO. OF TENNESSEE.
• Court: Missouri Court of Appeals

141 S.W.2d 192

THROWER v. LIFE & CASUALTY INS. CO. OF TENNESSEE.

No. 25434.

St. Louis Court of Appeals. Missouri.

June 4, 1940.

Rehearing Denied June 18, 1940.

Appeal from Circuit Court, St. Louis County; John J. Wolfe, Judge.

"Not to be reported in State Reports."

Action by Louis V. Thrower against the Life & Casualty Insurance Company of Tennessee on a life policy. At the close of all the evidence, the trial court peremptorily directed a verdict in favor of defendant, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. From a judgment sustaining plaintiff's motion to set aside the involuntary nonsuit and for a new trial, defendant appeals.

Affirmed.

Louis J. Portner, of St. Louis, for appellant.

Joseph Boxerman and Wm. H. Allen, both of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit to recover a death benefit provided for in a policy of life insurance issued by appellant defendant on October 18, 1937, on the life of Noble L. Thrower, who was the wife of respondent, plaintiff below. At the trial before the court and a jury, at the close of all the evidence the court peremptorily directed a verdict in favor of the defendant insurance company, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. From the court's action sustaining plaintiff's motion to set aside the involuntary nonsuit and for a new trial defendant duly appealed.

Plaintiff's petition in substance alleged the issuance of the policy of insurance; that defendant agreed therein to pay $500 to plaintiff, as beneficiary, upon the death of plaintiff's wife, Noble L. Thrower; that all premiums were paid and all conditions to be performed were performed, and that the policy was in full force and effect at the time of the death of the insured, who died on December 13, 1937; that proofs of death were furnished the defendant and payment of the sum due was demanded; that defendant vexatiously refused to make payment.

The second amended answer of defendant, on which the case was tried, admitted the issuance and delivery of the policy, and contained a general denial of the other allegations in plaintiff's petition.

As an affirmative defense, defendant pleaded a provision in the policy called "Limitation of Insurance", which provides that, if the insured is pregnant at the time of the issuance of the policy and death results from such pregnancy within two years from the date of such issuance, the liability of the company shall be limited to the return of the premiums paid on the policy. Defendant's answer further pleaded that the insured was pregnant at the time of the issuance of the policy in October, 1937, and that her death resulted therefrom on December 13, 1937, which was within the two-year limitation named in the policy. Defendant tendered into court the premiums paid on the policy.

Plaintiff's reply was a general denial.

Plaintiff was the only witness in his behalf. He testified that the policy was solicited by defendant's agent about October 6, 1937; that he informed the agent at that time that the insured was in a pregnant condition; that the insured died on December 13, 1937; that all the premiums on the policy had been paid, and that proofs of death were given to the company on forms furnished to him; that he made demand for the insurance; that defendant refused to pay, but offered to return to him the premiums. Plaintiff further testified that his wife was pregnant at the time she was taken to the hospital and was in that condition on October 18, 1937, the day the policy was delivered; that he did not know whether the cause which required her to be taken from her home to the hospital was connected with her condition of pregnancy.

Plaintiff identified plaintiff's Exhibit A as the policy in question, which was introduced in evidence.

To sustain its defense, defendant introduced in evidence a certified copy of the certificate of death issued by the Bureau of Vital Statistics, certifying to the death of the insured, which was marked defendant's Exhibit 1. The introduction of the exhibit was objected to by plaintiff on the ground that it had not been identified by anyone, that it was a photostatic copy and that it was privileged. Plaintiff further objected on the ground that the certificate of death was prepared by Dr. O'Connell, coroner, and not by the attending physician and was therefore based upon hearsay. All these objections were overruled and the certificate was read to the jury. In said certificate the cause of death is stated as "toxemia of pregnancy" with "eclampsia (parturition)" as a contributing cause.

Dr. John O'Connell, Coroner of St. Louis County, testified, as a witness for defendant that toxemia of pregnancy means "toxemia that is caused prior to, during or following pregnancy"; that "parturition" is a part of the act of bearing a child, and "eclampsia" results from toxemia of pregnancy and is epilepsy characterized by convulsions. Dr. O'Connell stated that in his opinion "the contributing cause of this lady's death was due to the condition of pregnancy." The witness further testified that an autopsy was performed on the body of the insured; that he had the records of his office showing said autopsy, which were made out under his supervision and were prepared and signed by him as Coroner of St. Louis County. These records were marked defendant's Exhibit 2. Plaintiff objected to the witness reading any part of said records on the ground that they were hearsay and were based upon information given to the witness by the attending physician, and that such information was privileged. The objections were overruled and the witness read from a part of said exhibit which he called a "synopsis of the case", wherein the cause of death was given as "toxemia of pregnancy", contributing cause "eclampsia (parturition)." The witness further stated that the report of the autopsy on the body of the insured was included in defendant's Exhibit 2; that his findings as Coroner were "full term pregnancy; two, hemorrhagic necrosis of the liver, toxemia of pregnancy, eclampsia; third, cerebral pontine hemorrhage." The witness testified that, in his opinion, the condition found by the autopsy was the result of pregnancy in the insured. The autopsy report, defendant's Exhibit 2, also referred to as Post Mortem Examination, was introduced in evidence over the objection of plaintiff, which objections were based upon the same ground as the objections to defendant's Exhibit 1.

On cross-examination, Dr. O'Connell testified that the matters contained in the "synopsis of the case" were based upon information given to him by either Dr. Fulmer or Dr. Nolan, and that he (the witness) had no personal knowledge of the truth of such statements; that he did not perform the autopsy on the insured; that it was performed by Dr. Henry C. Allen, and he (the witness) was not present when it was performed; that all he knew was that there was a patient by the name mentioned in the exhibit and that she died; that Dr. Allen made the autopsy and that the internes reported to him; that what the witness had testified to as being the autopsy and the cause of the insured's death was based upon information given to him by either Dr. Fulmer or Dr. Nolan, except as to the preponderance of the fetus. The witness further testified, on cross-examination, that eclampsia is commonly known as convulsions which can and do occur aside from pregnancy; that they occur in infants; that it is not in every case that a woman might have convulsions as a result of pregnancy; that necrosis of the liver means sloughing off or rotting of the tissue; that in this case the autopsy showed necrosis of the liver, meaning dead tissue around the liver; that a person could die of that condition whether pregnant or not; that cerebral pontine hemorrhages mean hemorrhages of the brain, and that a person does not have to be pregnant to have cerebral hemorrhages; that the insured could have died naturally from cerebral hemorrhages, from the necrosis of the liver, if allowed to go on a sufficient time; but, with all of them coupled up following the clinical history, he had then come to his conclusion, which, in this case, was toxemia of pregnancy. The witness further testified that the reason he did not include in the death certificate the conditions found by the autopsy, such as hemorrhagic necrosis of the liver and cerebral hemorrhages, was that those were anatomical findings, and that "eclampsia covers them somewhat"; that it would be impossible to print a death certificate large enough to enumerate everything from an anatomical standpoint.

Defendant contends that the court erred in setting aside its order sustaining defendant's demurrer to the evidence at the close of the whole case, and asserts that it was established by competent, uncontradicted and unexplained documentary proof that the insured was pregnant at the time the policy was issued; that her death resulted from said pregnancy within two years thereof, and that under the policy the company was liable only for the refund of the premiums, which it had tendered into court; that all of the proof was of such a character that there was no room for reasonable doubt about the fact that the insured's death came within the terms of the policy exclusion, and hence there was no jury question.

It is clear that, by the introduction of the policy which was admitted to have been executed and delivered by defendant, together with the uncontradicted evidence of the death of the insured and plaintiff's relation to the insured as beneficiary, a prima facie case was made for plaintiff. McCormick v. Travelers' Ins. Co., 215 Mo. App. 258, 264 S.W. 916.

The general rule is that once a prima facie case is...