Opinion
No. 34303.
November 25, 1940.
1. INSURANCE.
In action on life policy excluding liability if insured was pregnant at date of issue of policy and death resulted from such pregnancy, where policy was issued December 30, 1936, and insured was married December 21, 1936, and died on March 10, 1937, after having given birth to a stillborn child on March 4, 1937, and disputed issue was as to whether insured was pregnant on date of issue of policy, there was presumption of chastity and honesty on part of insured.
2. INSURANCE.
In action on life policy excluding liability if insured was pregnant at date of issue of policy and death resulted from such pregnancy, insurer had burden of proving that insured was pregnant on date policy was issued.
3. INSURANCE.
In action on life policy excluding liability if insured was pregnant at date of issue of policy and death resulted from such pregnancy, where insured was married after policy was issued and died as result of birth of stillborn child three months and four days after date policy was issued, evidence, including certified copy of vital statistics record containing statement of attending physician that period of gestation of the stillborn child was "about" six months, which certificate, under statute, was only prima facie evidence of facts contained therein, was for jury on issue whether insured was pregnant on date of issue of policy (Code 1930, sec. 4907).
4. INSURANCE.
In action on life policy excluding liability if insured was pregnant at date of issue of policy and death resulted from such pregnancy, where insured died as result of birth of stillborn child three months and four days after date of issue of policy, and insurer introduced certified copy of vital statistics record containing statement of attending physician that period of gestation of the stillborn child was about six months, exclusion of evidence of rule of state board of health, that report of birth was not required unless child had advanced to fifth month of gestation, was error (Code 1930, sec. 4907).
5. TRIAL.
In action on life policy excluding liability if insured was pregnant at date of issue of policy and death resulted from such pregnancy, instruction that insurer had burden of proving that insured's death was the direct or proximate "cause" of said pregnancy was erroneous as being unintelligible, since it was inconceivable that death would cause pregnancy.
6. INSURANCE.
In action on life policy excluding liability if insured was pregnant at date of issue of policy and death resulted from such pregnancy, undisputed evidence that insured died from "puerperal sepsis" established that death was result of pregnancy, and submission of such issue to jury was error, since "puerpera" means a woman in childbirth or in period succeeding it; of or pertaining to childbirth, as, for example, a puerperal fever.
7. INSURANCE.
Under life policy excluding liability if insured was pregnant at "date of issue" of policy and death resulted from such pregnancy, date of issue appearing on face of policy was controlling, and previous dates of premium receipts under which insured may have obtained some rights were immaterial with respect to question of insured's pregnancy on date of issue.
8. APPEAL AND ERROR.
Instructions which were hopelessly and irreconcilably in conflict required reversal of judgment.
ON MOTION. (In Banc. Feb. 24, 1941.) [200 So. 732. No. 34303.]1. APPEAL AND ERROR.
The statute dealing with suits in forma pauperis applies only to courts of original jurisdiction, and not to courts of appeal (Supreme Court Rules, rule 29; Code 1930, secs. 663, 3406).
2. APPEAL AND ERROR.
Where judgment for plaintiff suing in trial court on pauper's affidavit was reversed by Supreme Court and cause remanded, and plaintiff's motion, with which was filed a pauper's affidavit in Supreme Court, to send down mandate without payment of costs by plaintiff, was granted, and a second judgment for plaintiff was reversed by Supreme Court and cause remanded, plaintiff's second motion, with which was filed another pauper's affidavit, demanding that mandate be sent down from second appeal without payment of costs by plaintiff, would be denied (Supreme Court Rules, rule 29; Code 1930, secs. 663, 3406).
APPEAL from the circuit court of Jones county, HON. F.B. COLLINS, Judge.
A.S. Scott, of Laurel, for appellant.
The verdict is contrary to the evidence and the law; the lower court should have sustained the defendant's motion to instruct the jury to find for the defendant, because this was a suit on an insurance policy, which did not cover pregnancy prior to issuance of policy, death resulted from such pregnancy, all the evidence sustained defendant's affirmative plea to this effect without a single contradiction, the birth certificate shows the fetus was several months older than the policy sued on, and the plaintiff admits the insured died from puerperal sepsis.
Sec. 4908, Code 1930; C. G.R. Co. v. Cobb, 156 Miss. 604, 126 So. 402; G. S.I.R. Co. v. Odum, 133 Miss. 543, 98 So. 60; Allman v. G. S.I.R. Co., 149 Miss. 489, 115 So. 594; G.M. N.R. Co. v. Jones, 137 Miss. 631, 102 So. 385; 37 C.J. 649, sec. 450; National Life Ins. Co. v. Jackson, 161 Ark. 597, 256 S.W. 378.
The testimony about the insured having menstruated December 10, 1936, could be proof of only one fact, i.e., that the insured was another of the many women who, while pregnant, continued to menstruate. If the appellee had put on the stand even one witness, however ignorant and untrained, who had testified that he saw the Ainsworth baby after its birth and in his, the witness' opinion, the baby was not anywhere close to being six months old at birth, then there would have been a conflict in evidence, but until the plaintiff should present some sort of evidence creating a conflict, or in some way question Dr. Crocker's findings, then a jury's findings regardless of whether or not it had any facts in conflict to decide, is not worth the paper upon which such futile verdict is written. Mere conjecture by a jury will not support a verdict.
Hercules Powder Co. v. Calcote, 138 So. 583, 161 Miss. 860.
Where testimony of an intelligent witness is undisputed, is reasonable, and in harmony with physical facts and facts of common observation, and witness is unimpeached, trier of facts must act on this testimony.
Tarver v. Lindsey, 137 So. 93, 161 Miss. 379; Beard v. Williams, 172 Miss. 880, 161 So. 750.
If menstruation can be scintilla of evidence of non-pregnancy, still such is conjecture and conjecture has no standing in our courts.
Mutual Ben. Assn. v. Johnson, 186 So. 297; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470.
The court erred in granting conflicting instructions. For the defendant the jury was told that if we proved that the fetus in question was more than three months and four days old, then the jury should find for the defendant. For the plaintiff the jury was told that we not only had to prove this fact but also that the further burden was on the defendant to prove that "death was the proximate result of said pregnancy," and also to further prove that death was the result of pregnancy, regardless of the fact that the plaintiff had sworn herself that insured died from puerperal sepsis.
Jackson v. Leggett, 186 Miss. 123, 189 So. 180; Henderson v. Henderson, 41 Miss. 584; Solomon v. City Compress Co., 69 Miss. 319, 12 So. 339; I.C.R.R. Co. v. McGowan, 92 Miss. 603, 46 So. 55.
The court erred in refusing to permit the introduction of the rules and regulations of State Board of Health touching requirement of those delivering still-born fetus, making report of only those foeti which have attained at least five months' period of gestation. This rule was enacted under the authority granted under Section 4875, Code 1930. It was admissible in any event under Section 1564, Code 1930, because it would be evidentiary in supporting the fact that unless the baby was at least five months old no birth certificate would have been sent in at all. Courts cannot take judicial knowledge of the rules and regulations of the State Board of Health.
23 C.J. 1897 and 1959, note 70; N.Y. City Health Dept. v. City Real Property Ins. Co., 86 N.Y.S. 18; 26 N.E. 217.
Leonard B. Melvin, of Laurel, for appellee.
When this case was before this court on a former hearing this court reversed this case because the trial court excluded the vital statistics records, and with the light of that decision before the trial court on the second trial this evidence was admitted and the jury heard this evidence and passed upon it as the Supreme Court said the jury should do. This presented a direct issue of fact between the appellant and the appellee, which issue of fact has been decided in favor of the appellee by the jury.
Life Cas. Ins. Co. v. Lena Walters, 177 So. 47, 180 Miss. 384; N.Y. Life Ins. Co. v. Turner, 97 So. 687.
It is true that the law provides that the facts contained in the birth certificate shall be deemed as prima facie evidence.
Appellant admits in its brief that if the testimony of the appellant is uncertain that this would be a question for the jury, but states that there is no uncertain testimony. The Vital Statistics Records are uncertain about the vital question asked. Dr. O.B. Crocker states that the fetus is about six months old, which answer was indefinite and uncertain. Does this kind of testimony meet the burden of proof imposed upon appellant? Appellant also states in its brief that if it is believed by the jury that the insured menstruated as testified to by plaintiff that this would only be proof that the insured was one of those women who menstruate while heavy with child. This may or may not be true, and it was the duty of the jury to determine this fact at issue.
Davis v. Gulf States Ins. Co., 151 So. 167; Tarver v. Lindsey, 137 So. 93; Sovereign Camp, W.O.W. v. Sirten, 175 So. 539; Mutual Ben. Health Acc. Assn. v. Johnson, 186 So. 297.
If the instructions are contradictory as is argued by the appellant, the instruction requested by the appellant is not the law, and since it was requested by the appellant, how can the appellant here be heard to say that this court has erred in granting to it this instruction? Appellant states that the instruction granted to appellee is not the law, because there is no burden on the appellant to prove that the insured's death was the direct and proximate cause of said pregnancy. In making this argument to this court the appellant ignores the decisions and opinions of the Alabama Court in the cases of Sovereign Camp, W.O.W. v. Sirten, 175 So. 539, and Ladner v. Ladner, 139 So. 395.
On the trial of this case the appellant sought to introduce certain rules and regulations of the State Board of Health. It will be noted that these rules and regulations have never been declared the law of Mississippi, and there is no statute in Mississippi declaring these rules shall be the law in Mississippi. Section 4875, Code of 1930, simply gives the State Board of Health power to declare these rules evidence in the trial of any cause.
23 C.J., sec. 1897.
Briefs of counsel on motion not found.
Argued orally by A.S. Scott, for appellant, and by Leonard B. Melvin, for appellee.
Appellant appeals here from an adverse judgment in favor of appellee, Mrs. Lena Walters, the beneficiary in a life insurance policy.
This case has been before this court on a former appeal, 180 Miss. 384, 177 So. 47, 48, and was reversed and remanded because the court below erroneously excluded certificates from the records of vital statistics of the State Board of Health showing the facts with reference to the death of the insured, and of the birth of her stillborn child. The insurance company defended on the ground that the policy provided that it was not liable under its contract "if insured is pregnant at date of issue of policy and death results from such pregnancy."
The appellee introduced the contract of insurance, proved that it was in force at the date of the death of the insured, and that she had been named beneficiary by her daughter, Mrs. Naomi Walters Ainsworth. This daughter died on March 10, 1937, the cause of her death being puerperal sepsis, as disclosed by the proof of death sworn to by Mrs. Lena Walters. The policy of insurance was in force at her death, and was dated November 30, 1936.
The insurance company offered a certificate, duly certified to by the Vital Statistics Department of the State Board of Health, which disclosed that on March 4, 1937, Mrs. Naomi Walters Ainsworth gave birth to a stillborn male child. This certificate was made by Dr. O.B. Crocker, the attending physician. Therein, there was printed this query: "If stillborn, period of gestation," and the physician's reply thereto was "about 6 mos."
For the appellant, Dr. Golden, as an expert physician, testified that puerperal sepsis was caused by childbirth, and also made this positive statement: "Lawyer, you can't have puerperal sepsis without having the delivery, that is what I want to get over to the court. When you have puerperal sepsis, you have got to have pregnancy and delivery before you have puerperal sepsis."
On cross-examination, the physician stated that the disease, puerperal sepsis, was the prime cause of death, but was due to the pregnancy and birth of a child. In that view, the disease — blood poisoning — would occur by infection after or at the time of or on the occasion of a birth of a child.
In rebuttal, the beneficiary testified that her daughter, the insured, visited her on December 10, 1936, and on that date the insured was menstruating. That, thereafter, on December 21, 1936, the insured was married to Velma Joe Ainsworth.
In surrebuttal, the expert physician testified that some women menstruate after pregnancy, but that under normal conditions women stop menstruating after pregnancy.
No witness, who was present on March 4th and had seen the stillborn child, was offered or testified. Miss Holifield, mentioned in the former opinion, did not testify on this trial. The motion for a new trial discloses that "she had gone back" on her testimony in the first trial. We do not think the appellant was entitled to a peremptory instruction in this case.
The defense relies on the certificate of the attending physician, which stated that the foetus of the stillborn child was of about six months gestation. Therefore, from the date the policy was issued, November 30, 1936, to March 4, 1937, there intervened only three months and four days, and consequently the insured must have been pregnant about six months, or at least more than five months.
Appellant relies upon Section 4907 of the Code of 1930, which provides as follows: "Certificates of registrar to be prima facie evidence. — Any copy of the records of birth, sickness or death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima facie in all courts and places of the facts therein stated."
Appellant relies upon this certificate and the statement that the period of gestation of the stillborn child was about six months. "About" means near to, and is to some extent uncertain and indefinite; and, in addition to that, the evidence that the insured was menstruating on December 10, 1936, after the date of the issuance of the policy and before her marriage on December 21, 1936, created an issue of fact for the jury. The jury had a right to indulge the presumption of chastity and honesty in the deceased female. We have not overlooked the fact that the physician testified that normal women do not menstruate after becoming pregnant. The exact time of utero-gestation can never be ascertained with certainty. See Herzog, Medical Jurisprudence, Sec. 956.
The burden was upon the appellant to show that the insured was pregnant on the day the policy was issued; and we are of the opinion that this was a question for the jury in the light of the fact that the certificate was only prima facie evidence of the facts therein contained.
The court erred, in our opinion, in excluding Rule 8 of the State Board of Health, the material fact of which was in these words: "Provided that a certificate of birth shall not be required for a child that has not advanced to the fifth month of utero-gestation."
Section 4907 authorized the promulgation of such rules as to births. This rule tended to explain what the reporting physician meant by the use of the words "about six months" as to the period of gestation of this stillborn child. He was not required to report this birth unless this child had advanced to the fifth month of gestation. The jury might infer that the physician would not do a vain thing by reporting such births which were of less than five months' period of gestation.
The court gave these instructions to the jury for the appellee:
"The court instructs the jury for the plaintiff that the burden of proving that the insured was pregnant at the time of the issuance of said policy and that her death was the direct or proximate cause of said pregnancy, is upon defendant and unless you believe from a preponderance of the evidence that insured was pregnant and said death resulted from said pregnancy, it is your sworn duty to find for plaintiff."
"The court instructs the jury for the plaintiff that the policy and receipts herein sued on together constitute the entire contract between insured and defendant company, and the burden of proving insured pregnant is upon defendant company and unless you believe from a preponderance of the evidence that insured was pregnant at the date of the original receipt, and such pregnancy resulted in the death of insured, it is your sworn duty to find for plaintiff."
The court gave this instruction to the jury for appellant: "The court instructs the jury for the defendant that it will be your sworn duty to find a verdict for the defendant, Life Casualty Insurance Company, if you find from the preponderance of the testimony that the insured, Mrs. Naomi Walters Ainsworth, gave birth to a stillborn child which had been conceived for more than three months and four days before its birth."
It will be readily observed that the instructions given by the court for appellee are in hopeless conflict. The first quoted instruction for appellee was unintelligible because it is inconceivable that death would cause pregnancy. By the second instruction, the court submitted two issues of fact to the jury: (1) That the death of the insured was the direct and proximate result of pregnancy of the insured; and (2) that insured was pregnant at the date of the receipt for dues.
By the instruction for appellant, the jury was limited to the issue of fact as to length of time insured was pregnant. In other words, the last instruction eliminated from the jury the issue of fact as to pregnancy having resulted in her death.
There was no issue in the evidence that on March 4, 1937, the insured was pregnant; and there was no conflict in the evidence that she died from puerperal sepsis. "Puerpera" is defined in Webster's New International Dictionary, 2nd Edition, "A woman in childbirth, or in the period succeeding it." "Puerperal" is defined therein as "Of or pertaining to childbirth; as, a puerperal fever." There is no room to argue but that the insured died as a result of her pregnancy. Therefore, the court erred in submitting that issue to the jury for appellee. We have heretofore determined that it was proper to submit the issue of whether or not she was pregnant on the date the policy sued on herein was issued. We think from the evidence in this case the policy sued on shows on its face that it was issued on November 30, 1936, and whether or not the insured obtained some rights by the several receipts issued prior to that time is of no consequence here. We think the quoted instruction granted to the appellant was correct, and therefore the quoted instructions granted the appellee were not. They were in such hopeless, irreconcilable conflict as to demand a reversal of this case. For the reasons given above, let this case be reversed and remanded.
Reversed and remanded.
ON MOTION.
The judgment obtained by appellee in the trial court was reversed and the cause remanded on November 25, 1940, 198 So. 746. A previous judgment in favor of appellee was reversed on November 29, 1937, 180 Miss. 384, 177 So. 47. The present motion is for an order upon the Clerk to send down mandate on an affidavit by appellee in forma pauperis in accordance with the ruling promulgated by this Court on June 12, 1939, in Jackson County v. Meaut, 185 Miss. 235, 189 So. 819.
When the first judgment was reversed and the costs taxed against appellee, the costs were not paid by appellee, who had sued in the trial court upon a pauper's affidavit, and an execution was issued against the successful appellant, who paid the costs on March 16, 1938. On December 28, 1939, soon after the publication of the opinion in the Meaut case, appellee filed a pauper's affidavit in this Court with a motion to send down the mandate, without payment of the costs by appellee as required by Rule 29 of this Court; and the mandate was sent as demanded. Now, as already stated, there is another motion and another pauper's affidavit demanding that the mandate be sent down from the second appeal.
To the present motion counsel for the successful appellant has responded that if for the second time the appellant is required to pay the costs, with no responsibility whatever on appellee in respect thereto, it would have been better, so far as out of pocket expenses are concerned, for appellant, the defendant in the trial court, to have at once paid the amount sued for to wit, $500, however unjust the demand rather than take the expense of litigation which these erroneous trials have imposed upon appellant, and which appellant alone must pay, without any fault on appellant's part; and appellant suggests that if appellee shall, as in the past, continue to procure judgments under erroneous records, as to which she has no responsibility in costs, there will be no discernible end to the costs which will be wrongfully imposed upon appellant, so that if appellant finally wins its case on the true merits, it will have lost it in costs, as a result of the errors brought into the trials by its opponent proceeding in forma pauperis.
It must have been considerations such as above mentioned, along with others, which caused this Court to promulgate on November 14, 1904, 83 Miss. XXVII, its Rule 30, reading as follows: "When costs are awarded in this court against the appellee, and there shall have been a return of nulla bona to an execution against him, and the costs shall be paid by appellant, no mandate shall issue upon the application of the appellee until he shall pay into the court, for the use of appellant, the costs paid by him." This is the exact language of Rule 29 of the revised rules of 1916 in force at this date.
The rule was originally promulgated by this Court when its membership was composed of men unsurpassed in legal ability in the judicial history of this State. There existed then, as it had existed for years theretofore, the statute, now Section 663, Code 1930, which allowed any citizen of this State to commence any suit or action, or answer any rule for security for costs in any court, by suing in forma pauperis: and there was also before the members the case, Woods v. Davidson, 57 Miss. 206, in which it was held that a person suing in forma pauperis could not appeal without bond, the Court saying: "Construing the two sections together, it must be held that the latter [the pauper statute] applies only to the court in which the suit is commenced, and authorizes its prosecution to final judgment there."
Plainer language could hardly have been used to the effect that the pauper statute applies only to a court of original jurisdiction, and not to courts of appeal. And when, in 1904, the Court adopted the rule which we are now discussing, there was also before it the case Mobile O.R. Co. v. Watly, 69 Miss. 475, 12 So. 558, construing Section 1442, Code 1880, in substantially the same language as Section 3406, Code 1930, which is the section which lies back of old Rule 30, and its continuation as the present Rule 29.
The cited statute dealing with Supreme Court costs made no exception, the Watly case made none, the quoted rule made none, and the first time an attempt was urged to get down a mandate on a pauper's affidavit was in 1933 in DuBois v. Thomas, referred to by McGowen, J., in his dissenting opinion in the Meaut case, wherein he pointed out that the case was fully briefed and the motion was denied on June 12, 1933, but, unfortunately, as it has turned out to be, without a written opinion. Then came the Meaut case holding to the contrary in 1939.
Since the rendition of the majority opinion in the Meaut case, incidents have come to our notice which in themselves had caused some of us to be shaken in our confidence in the correctness of that opinion as well as in its wisdom and salutariness, and the situations such as mentioned by appellant and above noted is only one among the observed incidents. The majority opinion in the Meaut case departed from the rule and practice, the wise and salutary rule and practice, which had been consistently adhered to for sixty years, and, so far as we can find, from the beginning of the history of the state. It brushed aside the decision of the Court on the same point rendered only six years before; and we have determined, upon a mature reconsideration of the Meaut case, to acknowledge our error in it; to overrule the majority opinion and to adopt the dissenting opinion therein — to return to the previous time-tested and correct rule, announced in Woods v. Davidson, that the statute dealing with suits in forma pauperis applies only to courts of original jurisdiction, and not to courts of appeal.
Motion overruled.