Woelfle v. Connecticut Mut. Life Ins. Co. of Hartford, Conn.

• Decision Date: 01 February 1938
• Parties: HORTENSE WOELFLE (PLAINTIFF), RESPONDENT, v. THE CONNECTICUT MUTUAL LIFE INSURANCE CO. OF HARTFORD, CONNECTICUT, A CORPORATION (DEFENDANT), APPELLANT
• Court: Missouri Court of Appeals

112 S.W.2d 865

234 Mo.App. 135

HORTENSE WOELFLE (PLAINTIFF), RESPONDENT, v. THE CONNECTICUT MUTUAL LIFE INSURANCE CO. OF HARTFORD, CONNECTICUT, A CORPORATION (DEFENDANT), APPELLANT

Court of Appeals of Missouri, St. Louis

February 1, 1938

Appeal from Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Leahy Walther, Hecker & Ely and J. L. London for respondent.

(1) Service upon the Superintendent of Insurance was good. State ex rel. American Central Ins. Co. v. Landwehr, 318 Mo. 181, 300 S.W. 294; Progressive Life Ins. Co. v Gideon, ___ Mo. ___; Woelfle v. Connecticut Mutual Life Ins Co., ___ Mo. ___; London Guarantee & Accident Assn. v. Woelfle (C. C. A. 8th), 83 F.2d 325. (a) The denial of an application for writ of prohibition by the Supreme Court made the question res adjudicata. State ex rel. Terry v. Holtcamp, 51 S.W.2d 13. (b) The filing of a term bill of exceptions recognized the jurisdiction of the court. (2) Impeachment of one's own witness permissible when elements of surprise, hostility, deceit or entrapment appear. Clancy v. St. Louis Transit Co., 192 Mo. 615, 91 S.W. 509; Beier v. St. Louis Transit Co., 197 Mo. 215, 94 S.W. 876; Luzzadder v. McCall (Mo. App.), 198 S.W. 1144; Tiede v. Fueher (Mo.), 195 S.W. 1008; Adelsberger v. Sheehy (Mo.), 59 S.W.2d 647; London Guarantee & Accident Assn. v. Woelfle, 83 F.2d 325; 6 Jones' Commentaries on Evidence, pp. 4806, 4808; People v. Marsiglia, 52 Cal.App. 385, 198 P. 1007; Randazzo v. United States (8th Cir.), 300 F. 794; Smith v. United States, 17 F.2d 223; Levy v. United States (8th Cir.), 35 F.2d 483; Di Carlo v. United States (2nd Cir.), 6 F.2d 364; St. Clair v. United States, 154 U.S. 134; Swift v. Short, 92 F. 567; Hays v. Tacoma R. & P. Co. (Wash.), 106 F. 48; Tacoma Pl. & P. Co. v. Hays, 110 F. 496; Beavers v. United States, 3 F.2d 860, l. c. 862, 863; Sneed v. United States (5th Cir.), 298 F. 911. (3) It is proper to offer impeaching statements in evidence. Beier v. St. Louis Transit Co., 197 Mo. 215; Clancy v. Railroad, 192 Mo. 615; London Guarantee & Acc. Assn. v. Woelfle, 83 F.2d 325; Hickory v. United States, 151 U.S. 303; St. Clair v. United States, 154 U.S. 134; Curtis v. United States, 67 F.2d 943; Randazzo v. United States, 300 F. 794; Smith v. United States, 17 F.2d 223; Levy v. United States, 35 F.2d 483; Di Carlo v. United States, 6 F.2d 364. (4) Party against whom impeaching statements are used desiring to limit impeaching statement for the purpose of impeachment only, must request the court to so instruct the jury, and a failure to do so, gives such party no ground of complaint. Quinn v. Van Raalte, 276 Mo. 71, 205 S.W. 59; Thompson v. City of Lamar (Mo.), 17 S.W.2d 960, l. c. 975; Cazzel v. Schofield, 319 Mo. 1169, 8 S.W.2d 580, l. c. 590. (5) The court properly submitted the case to the jury, (a) on the physical facts, and (b) on the medical testimony. Solomon v. Moberly L. & P. Co., 303 Mo. 622; London Guarantee & Acc. Co., Ltd., v. Woelfle, 83 F.2d 325; Prov. Life & Acc. Ins. Co. etc. v. Diehlman (Ky.), 82 S.W.2d 350; Nat. Life & Acc. Ins. Co. v. Williams, 84 Ind.App. 343, 138 N.E. 826; Brownlee v. Mut. Benefit H. & A. Ass'n, 29 F.2d 71; 22 C. J., sec. 27, p. 86, n. 73-74; Joyce v. Mo. & Kans. Tel. Co., 211 S.W. 900; 1 Jones on Evidence, p. 59; Preferred Accident Ins. Co. of N. Y. v. Combs, 76 F.2d 775; Metropolitan Life Ins. Co. v. Siebert, 72 F.2d 6; Mass. Protective Ass'n v. Lewis, 72 F.2d 952; Standard Acc. Ins. Co. v. Rossi, 35 F.2d 667, 672; Acc. Ins. Co. v. Crandal, 120 U.S. 527, 533. (6) (a) The opinions of medical experts were competent to show that the fall might or could have caused the rupture of the aorta. (b) There was no evidence that anything other than the fall could have ruptured the aorta. (7) The issue of whether the fall, or whether the alleged disease which appellant undertook to how was the cause of death, which was controverted by respondent's experts, was a question of fact for the jury. London Guarantee & Accident Co. v. Woelfle, 83 F.2d 325.

Jones, Hocker, Gladney & Grand and Web A. Welker for appellant.

(1) The policy in suit having been applied for and delivered in Illinois, where insured resided and died, and where the plaintiff, the beneficiary of the policy, resided until shortly prior to the institution of this action, the Superintendent of the Missouri Insurance Department was not authorized or empowered to accept service in defendant's behalf in this action and the service was void, notwithstanding plaintiff may have established a residence in Missouri when the action was instituted. State ex rel. American Central Life Insurance Co. v. Landwehr, 308 Mo. 181; Hunter v. Mutual Reserve Insurance Co., 218 U.S. 573; Davis v. Farmers Equity Co., 262 U.S. 312. Courts of one State are not required to entertain jurisdiction of actions which properly belong in another State. Heine v. New York Life Ins. Co., 50 F.2d 382; Atchison etc. Ry. Co. v. Werles, 254 F. 513; Universal Adjustment Corp. v. Midland Bank (Mass.), 184 N.E. 152. Where lack of jurisdiction does not appear from the record, it must be raised by a plea to the jurisdiction in the answer and cannot be raised by a motion to quash the service. Mertens v. McMahon (Mo.), 66 S.W.2d 127, 133. (2) (a) Impeachment by a party of his own witness is only permissible in Missouri when he has been (1) surprised by the testimony of the witness, (2) entrapped into calling the witness, and (3) prejudiced by the testimony of the witness. Clancy v. St. Louis Transit Co., 192 Mo. 615, 646; Beier v. St. Louis Transit Co., 197 Mo. 214. Plaintiff was not surprised by the testimony of Mr. Block. Dunn v. Dunnaker, 87 Mo. 597; Matter of Estate of Largue, 198 Mo. 261; Baker v. Metropolitan Street Railway Co., 181 Mo. 392, 393. Plaintiff was not entrapped into calling Mr. Block as a witness. Beier v. St. Louis Transit Co., 197 Mo. 214, 234; Dauber v. Josephson, 209 Mo.App. 531. Plaintiff was not prejudiced by the testimony of Mr. Block. State v. Bowen, 263 Mo. 279; State v. Drummins, 274 Mo. 632, 647. Appellant was prejudiced by the action of the trial court in permitting the plaintiff to impeach her own witness, Block, by his previous written statements that he had seen the insured fall, and in permitting the plaintiff to introduce and read those written statements in evidence. Glenn v. Metropolitan Life Ins. Co., 167 Mo.App. 109; Sullivan v. United States, 28 F.2d 147; London Guarantee & Accident Company v. Woelfle, 83 F.2d 325, distinguished. Federal rule on right to impeach one's own witness is the same as the Missouri rule. Randazzo v. United States, 300 F. 794; Kuhn v. United States, 24 F.2d 910; Arine v. United States, 10 F.2d 778, 780; Sneed v. United States, 298 F. 911, 915. There is a difference between cross-examination and impeachment. State v. Patton, 255 Mo. 245. (3) The previous ex parte statements of a witness do not constitute substantive evidence even if they are admissible for the purposes of impeachment. Cases cited under Point 2; State v. Burks, 132 Mo. 362, 373; State v. Bowen, 263 Mo. 279; Crago v. State (Wyo.), 202 P. 1099; Southern Ry. v. Gray, 241 U.S. 333, 337; Hickory v. United States, 151 U.S. 303; Kuhn v. United States, 24 F.2d 910; Barrett v. Virginia Railway Co. , 244 F. 397; U. S. v. Block, 88 F.2d 618. It was just as reasonable to infer that the fall, if one was sustained, was the result of the heart ailment or the other ailments with which the insured was afflicted as that it was the result of an accident. Phillips v. Travelers Insurance Co., 288 Mo. 175, 231 S.W. 947, 949; New York Life Ins. Co. v. Doerksen, 75 F.2d 96, 99. Opinions of medical experts which are contrary to the physical facts, common knowledge or common sense, have no probative value. Kimmie v. Terminal R. R. Assoc. (Mo.), 66 S.W.2d 561, 565. The opinion of medical experts that the insured's alleged fall might or could have caused the rupture of his aorta did not make that question a submissible issue. Kimmie v. Terminal R. R. Ass'n (Mo.), 66 S.W.2d 561, 564; Tigpen v. Jefferson Standard Life Ins. Co. (N. C.), 168 S.E. 845; Ocean Accident & Guarantee Corp. v. Moore, 85 F.2d 369, 375; Svenson v. Mutual Life Ins. Co., 87 F.2d 441, 445; Ellison v. United States, 76 F.2d 868. In view of the testimony of plaintiff's own medical experts that the rupture of the insured's aorta might have been caused by the swinging of his golf clubs during the golf game of September 5th, or to his other exertions during or after that game, the plaintiff failed to sustain the burden of proof that the rupture of the aorta was the result of an accidental fall sustained by the insured during that game. Phillips v. Travelers Ins. Co. (Mo.), 231 S.W. 947, 950; Pedico v. Roseberry (Mo.), 102 S.W.2d 600, 608; Warner v. St. Louis Transit Co., 178 Mo. 125; Parker v. Gulf Refining Co., 80 F.2d 795, 796. (4) The policy in suit was an Illinois contract and under the law of that State there can be no recovery under the policy where death is due to the combined effects of an accidental injury and a pre-existing disease. Moor v. Illinois Commercial Men's Assoc., 166 Ill.App. 38; Crandall v. Continental Casualty Co., 179 Ill.App. 330; Robinson v. United States Health & Accident Co., 192 Ill.App. 475; Mayne v. Travelers Insurance Co., 220 Ill.App. 493, 498.

BENNICK, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

BENNICK, C.

This is an action by plaintiff, the beneficiary to recover the accidental death benefit of $ 2000 alleged to be due under a policy of insurance which was issued by defendant. The Connecticut Mutual Life Insurance Company of Hartford, Connecticut, upon the life of her husband, Dr. James E. Woelfle, of Cairo,...