Waterous v. Columbian Nat. Life Ins. Co.

Decision Date05 March 1945
Docket Number38942
PartiesChester H. Waterous, Assignee of Walter A. Mitchell, Appellant, v. The Columbian National Life Insurance Company, a Corporation
CourtMissouri Supreme Court

Rehearing Denied, Motion to Transfer to Banc or to Modify Opinion Overruled April 2, 1945.

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Reversed and remanded.

Jonathan Edwards Clarke for appellant.

(1) After examining insured in 1934 the defendant company's denial of liability thereafter upon the sole ground that the loss did not occur from a risk insured against is, as a matter of law, a waiver of notice and proof, the furnishing of which would be a needless and idle ceremony. Graves v Washington Natl. Ins. Co., 180 S.W.2d 805; Dezell v Fidelity & Casualty Co., 176 Mo. 253; Crenshaw v Ins. Co., 71 Mo.App. 42; Hardie v. Metropolitan Life Ins. Co., 7 S.W.2d 746; Brix v. Fidelity Co., 171 Mo.App. 518; 1 C.J., p. 479; 7 Couch on Ins., p. 5540, sec. 1573; Sturgis v. American Hospital Life Ins. Co., 174 S.W.2d 917; Shearlock v. Mutual Life Ins. Co., 182 S.W. 89; See also authorities under Point (10). (2) Even if the physical examination and denial of liability in 1934 upon the ground of no accident could be held not to amount to a waiver of notice, time is not of the essence of such provision, and the insurance cannot be forfeited for failure to give notice prior to 1940 in the absence of an express provision of the policy declaring such a forfeiture. Dezell v. Fidelity & Casualty Co., 176 Mo. 253, 75 S.W. 1102; Shanebarg v. Natl. Accident Society, 263 S.W. 512; State ex rel. v. Allen, 267 S.W. 379; Pendergast v. Dwelling House Ins. Co., 67 Mo.App. 426; Jones v. Casualty Co., 113 Mo.App. 622; Hablutzel v. Home Life Ins. Co., 59 S.W.2d 639; Jackson v. Security Ben. Assn., 139 S.W.2d 1014; Lydon v. New York Life Ins. Co., 89 F.2d 78; Bank of Commerce & Trust Co. v. Northwestern Natl. Life Ins. Co., 26 S.W.2d 1935; Drucker v. Western Indemnity Co., 223 S.W. 989; Minnesota Mutual Life Ins. Co. v. Marshall, 29 F.2d 977; Rogers v. Metropolitan Life Ins. Co., 122 S.W.2d l.c. 11; Wood v. Metropolitan Life Ins. Co., 161 S.W.2d 737. (3) It follows, therefore, that with notice and proof waived by a denial of liability in 1934, and with no forfeiture provision for failure to give notice, notwithstanding admitted notice in 1940, nothing short of the ten-year statute of limitations will bar plaintiff's right to recover. St. Paul & K.C. Ry. Co. v. U.S.F. & G. Co., 105 S.W.2d 14; Rogers v. Metropolitan Life Ins. Co., 122 S.W.2d l.c. 5; Corcoran v. Metropolitan Life Ins. Co., 93 S.W.2d 1027; Stalion v. Metropolitan Life Ins. Co., 119 S.W.2d 30; Hablutzel v. Home Life Ins. Co., 52 S.W.2d 480, 59 S.W.2d 639; Jackson v. Security Ben. Assn., 139 S.W.2d 1014; Shearlock v. Mutual Life Ins. Co., 182 S.W. 89. (4) It therefore follows that notice and proof could not be an issue to submit to the jury: that having once waived the notice and proof provisions of the policy in 1934, and having written a policy with no forfeiture provision, the defendant's attempt, through its vice-president and general counsel, in 1940 to create a nonexistent forfeiture for failure to give notice and proof was a nullity and did not constitute a defense to his action. And this denial of liability in 1940 upon the ground that notice and proof were not given and without reserving any other ground of defense constituted a waiver of all defenses not then asserted. Therefore there was no issue to submit to the jury and the trial court erred in rendering judgment for the defendant. 1 C.J., p. 488, sec. 233; Moore v. Natl. Acc. Soc., 49 Wash. 312, 95 P. 268; Reynolds v. Travelers Ins. Co., 176 Wash. l.c. 50; Metropolitan Life Ins. Co. v. Chambers, 226 Ala. 192; Towle v. Ins. Co., 91 Mich. l.c. 223; National Aid Life Assn. v. Murphy, 78 S.W.2d l.c. 227; Ash Grove L. & P. Co. v. Southern Surety Co., 38 S.W.2d 434; Talbert v. General Exchange Ins. Corp., 75 S.W.2d 424; Carroll v. Union Marine Ins. Co., 249 S.W. 691; Keyes v. Natl. Council Knights & Ladies of Security, 174 Mo.App. 671; Francis & Hunter v. Supreme Lodge A.O.U.W., 150 Mo.App. 347; Daniel v. Aetna Life Ins. Co., 36 S.W.2d 688, 225 Mo.App. 357; Shearlock v. Mutual Life Ins. Co., 193 Mo.App. 430, 182 S.W. 89; Hay v. Bankers' Life Co., 231 S.W. 1035; Ceresia v. St. Guiseppe Mut. Aid Working Men's Assn., 211 S.W. 81; Block v. U.S.F. & G. Co., 290 S.W. 429. (5) The trial court erred in admitting in evidence defendant's Exhibit A, a letter from a Mrs. Brod, because said letter was hearsay and a conclusion of the writer thereof and was incompetent and self-serving, and a proper foundation had not been laid for its introduction, because said letter was unauthorized by the plaintiff or the insured, and that said Mrs. Brod was not qualified to make a diagnosis of the disability of the insured. The universal rule is that in the absence of a statute, declarations which are objectionable as hearsay are not rendered competent by the fact that the declarant has died since such declarations were made. 22 C.J., p. 216, sec. 179; 31 C.J.S., p. 948, sec. 216; Wahl v. Cunningham, 56 S.W.2d 1052; Townsend v. Schaden, 275 Mo. 227, 204 S.W. 1076; Decker's Estate, 152 S.W.2d 104; McCune v. Daniels, 251 S.W. 458; Alter v. John McMenamy Inv. & R.E. Co., 50 S.W.2d 691; Lanphere v. Affeld, 99 S.W.2d 36; Wilson v. Frankel, 61 S.W.2d 363; Gore v. Whitmore Hotel Co., 83 S.W.2d 114; Schultz v. St. Louis-S. F. Ry. Co., 4 S.W.2d 762; 20 Am. Jur., sec. 620; 96 A.L.R. 702 (e); 32 C.J. 54; Sconce v. Jones, 121 S.W.2d 777, 343 Mo. 362; 32 C.J.S., p. 21, sec. 403; Grant v. Grant, 171 Mo.App. 317; Spruce Co. v. Mayes, 62 S.W.2d 824; Haselden v. Standard Mut. Life Assn., 1 S.E.2d 924; Metropolitan Life Ins. Co. v. Bradbury, 65 P.2d 433; New York Life Ins. Co. v. Ittner, 200 S.E. 522; Stone v. Union Fire Ins. Co., 107 P. 241. (6) The court erred in admitting in evidence an inter-company communication, defendant's Exhibit E, a letter from its General Agent, addressed to the Home Office of the defendant, and purporting to carry a statement from Mrs. Mitchell wherein Mrs. Mitchell is alleged to have stated that she didn't know the cause of Mr. Mitchell's condition, because said letter was in the nature of hearsay testimony, was not supported by oath, was not written in the presence of Mr. Mitchell, there was no showing that she was competent to diagnose his condition or was authorized to make a statement in behalf of Mr. Mitchell, and which letter was self-serving and incompetent and not in support of the pleadings in the case. See authorities cited in Point (5); Bacon Piano Co. v. Medcalf Jewelry & Music Co., 40 S.W.2d 762; Brown v. Mo. State Life Ins. Co., 254 S.W. 7; Murphy v. Mutual Life Ins. Co., 112 P.2d 993; Bellamy v. Eagle Picher Lead Co., 31 F.2d 662; McCormick v. Travelers Ins. Co., 264 S.W. 916; Wahl v. Cunningham, 56 S.W.2d 1952; Townsend v. Schaden, 275 Mo. 227, 204 S.W. 1076; Eagsdale v. Achuff, 27 S.W.2d 6; Weller v. Collier, 199 S.W. 974; 22 C.J., pp. 228, 230. (7) The court erred in admitting in evidence on behalf of the defendant, defendant's Exhibits F and G, both of which were self-serving, incompetent and immaterial and in the nature of hearsay evidence and not supported by the pleadings. See authorities under Point (5) and Point (6). (8) The court erred in admitting in evidence defendant's Exhibit D, a medical report made by the defendant's physician which was self-serving and in the nature of hearsay testimony and not binding upon the insured and which was incompetent, and because the physician making said report was present as a witness and testified in the case, and for the further reason that said report, under the law, could only be used to refreshen the memory of said physician if he found it necessary to do so. Wahl v. Cunningham, 56 S.W.2d 1053; Tate v. Wabash Ry., 159 Mo.App. 475; Bottom v. Portland Electric Power Co., 9 P.2d 129. (9) The court erred in reading and giving to the jury six instructions on behalf of the defendant, which were instructions 6, 7, 8, 9, 11 and 12, informing the jury that the burden of proof was upon the plaintiff, because the giving of said instructions unduly emphasized the burden placed upon the plaintiff and required the plaintiff to carry a greater burden than is required by law and because the changing of a few words in each of said instructions was a subterfuge on the part of the defendant to avoid the rule of law that a plain, simple burden of proof is sufficient and because said instructions were not covered by the pleadings and were not supported by the evidence. Guardian Life Ins. Co. v. Robinson, 129 S.W.2d 192; Williams v. Guyot, 126 S.W.2d 1137; Belle v. S.S. Kresge Co., 129 S.W.2d 932; Mitchell v. Dyer, 57 S.W.2d 1082; Rouchene v. Gamble Const. Co., 89 S.W.2d l.c. 63; Reeves v. Lutz, 177 S.W. 764; Sidway v. Mo. Land & Live Stock Co., 163 Mo. 342. (10) The court erred in reading and giving to the jury on behalf of the defendant Instruction 6, because said instruction is in conflict with instructions given on behalf of the plaintiff and because said instruction told the jury that it was the duty of the plaintiff to give written notice of the accident within 20 days from the occurrence thereof which was a defense not covered by the pleadings and which was not a defense under the policy of insurance, even though the policy may have been interpreted to require the said 20-day notice, said defense was waived by the defendant and because said instruction was misleading and placed upon the plaintiff a greater burden than is required by the law or the policy. See authorities cited under Points (1), (2) and (3); Jackson v. Life & Annuity Assn., 195 S.W. 535; Keeton v. Natl. Union, 182...

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