Opinion
October 30, 1941.
1. INSURANCE: Admissions in Proof of Death: When Conclusive Against Beneficiary. Statements in proofs of death furnished by a beneficiary are admissible against such beneficiary in an action on the policy, but they are prima facie only, and are not conclusive when explained or contradicted by other facts.
2. INSURANCE: Sound Health: Admissions in Proof of Death: Explanation. The proof of death contained a physician's certificate indicating a disease for a sufficient length of time to violate the sound health clause of the insurance policy. Other portions of the certificate and the testimony of the physician indicated that, except for a short period before death, the physician had no knowledge except from the hospital records. This was a sufficient explanation and contradiction, and the opinion of the Court of Appeals was not in conflict.
3. CERTIORARI: Merits. In certiorari on claim of conflict, the Supreme Court is without authority to consider the merits.
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.
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 Dr. L.M. Aronberg, who was a witness at the time of the trial, and the duration of the illness was given therein as four years. The St. Louis Court of Appeals, in its opinion herein, has held that this admission is not conclusive against plaintiff, and that, despite such admission, plaintiff was entitled to have her cause submitted to a jury."
In other words, relator contends in this court that the duration of illness fixed at four years by Dr. Aronberg, in the certificate attached to the proof of death, is conclusive against plaintiff on the issue of sound health, and for that reason the ruling of the court of appeals on the question conflicts with the rule announced in Kirk v. Met. Life Ins. Co., 336 Mo. 765, 776, 81 S.W.2d 333, which follows:
"Proofs of death furnished by a beneficiary are admissible against such beneficiary to show the truth of the statements contained therein in an action brought by him on the policy, and when not contradicted or explained may preclude recovery. [Burgess v. Pan-American Life Ins. Co. (Mo.), 230 S.W. 315, and cases cited.] Such statements are prima facie only, and are not to be treated as conclusive when other facts are brought forward to explain or contradict them so as to relieve against the effect of such admission. But when not so explained, or contradicted, the statements against interest, if sufficient to defeat recovery under the law, are treated as true and given effect accordingly. [Citing cases.]"
At the trial plaintiff introduced the policy in evidence and closed in chief on defendant admitting the death of the insured in the St. Louis County hospital on July 20, 1938. Thereupon defendant introduced in evidence the proof of death and the certificate of Dr. Aronberg as attending physician at the time of the insured's [251] death. In the certificate the cause of death is stated as "diabetes mellitus — duration; four years." The certificate also contained questions and answers as follows: "Q. Date of your first visit or prescription in the last illness? A. 6-19-38. Q. Date of your last visit? A. 6-20-38. Q. Have you prior to the last illness attended or prescribed for the deceased? If so gives dates and particulars. A. Has attended clinic and been treated since 1934 by various physicians on the house staff."
As a witness for the defendant, Dr. Aronberg testified that he became connected with the hospital in July, 1937, and that he did not treat the insured prior to June 18, 1938. It follows that the doctor had no personal knowledge of the physical condition of the insured prior to that date. If so, the statements in the certificate that the insured was ill for four years and under treatment at the hospital since 1934 must have been made by the doctor from the records of hospital. Thus it appears that defendant's witness, Dr. Aronberg, who made the certificate, explained and contradicted the same by his testimony in the case. The claim of conflict is without foundation.
In the brief relator argues the merits of the case. On questions of conflict we are without authority to consider the merits. The writ should be quashed. It is so ordered. All concur.