Opinion
No. 27857.
April 18, 1950.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WALDO C. MAYFIELD, J.
Kenneth Teasdale, St. Louis, Henry C. M. Lamkin, St. Louis (Cobbs, Logan, Armstrong, Teasdale Roos, St. Louis, of counsel), for appellant.
Ernest A. Brooks, II, St. Louis, John P. Pfeffer, St. Louis, for respondent.
This is an action on two policies of life insurance which were issued by defendant, the John Hancock Mutual Life Insurance Company of Boston, Massachusetts, upon the life of George Jefferson Fisher, deceased. Plaintiff, Ollie Fisher, the widow of the deceased, sues as beneficiary named in the policies. There was a verdict and judgment below for plaintiff. From this judgment defendant has appealed.
The policies were issued on May 7, 1947. The face amount of each policy was $250. Each policy contained the following provision: "Policy when void. This policy shall be void if on its date of issue the Insured was not in sound health, or if prior to said date, the insured * * * had * * * any disease of the heart * * *, or if, within two years prior to said date, the Insured was attended or treated by any physician or other practitioner * * * for any serious disease, complaint or surgical operation * * *."
The insured died January 4, 1948. Thereafter, proofs of death were submitted in accordance with the terms of the policies. Liability was denied, and this suit followed.
The defense to the suit was based upon a breach of the above quoted sound health warranty. As to that defense, it was pleaded that at the time of the issuance of the policies, the insured was suffering from "hypertension heart disease, an anxiety state, angina pectoris, coronary artery disease, and other diseases of the heart; that said condition had existed from the period of July 1946, to the time of assured's death." It was also pleaded that within two years prior to the date of issuance of said policies the insured had been treated by physicians for serious disease.
Plaintiff, by her evidence, made a prima facie case. To establish its defense, defendant relied on admissions contained in the proofs of death submitted by plaintiff to defendant. These proofs of death consisted of a claimant's certificate signed by plaintiff, a certified copy of the death certificate filed in the office of the Bureau of Vital Statistics, and statements signed by three physicians who had attended the insured.
In claimant's certificate, the cause of death was stated to be "heart attack." The death certificate gave as the immediate cause of death: "Arteriosclerotic coronary thrombosis, myocardial infarction."
One of the physicians' statements, Defendant's Exhibit 2, was signed by Dr. Joseph J. Gitt. In this statement Dr. Gitt recorded that he had attended deceased from July 29, 1946, to January 4, 1947, for "anxiety state with hypertension, moderate," and that insured's health first became impaired July 29, 1946.
Defendant's Exhibit 4 was a physician's statement signed by Dr. Max S. Franklin. It stated that he had attended the insured on November 1, 1947, for "angina pectoris, coronary artery disease"; that the duration of the disease was "according to patient, onset of illness was about three months ago"; and that in his opinion insured's health was first impaired "recently."
Defendant's Exhibit 3 was a physician's statement signed by Dr. Michael M. Karl. It stated that he had attended the insured on January 3 and 4, 1948, for "hypertensive heart disease with myocardial infarction" that the duration of the disease was "unknown," and that, in his opinion, the insured's health became impaired in July, 1946.
The defendant called Dr. Charles Rush McAdam who testified at length concerning the nature of the diseases mentioned in the foregoing exhibits. He was handed defendant's Exhibit 2 and testified that "anxiety state" was a mental or nervous condition. On cross-examination, he testified:
"Q. * * * is not anxiety state with hypertension caused by many other things than any form of heart disease? A. Oh, yes, sure. Anxiety state means nervous condition or nervous state.
* * * * * *
"Q. Any one of these gentlemen might have anxiety state and still not pass away with heart disease? A. Oh, yes, sir.
"Q. And is there anything else on that statement of Dr. Gitt's that shows that this man had any disease from which he was in any way bound to pass away with heart disease? A. I don't see any such.
"Q. In other words, that anxiety state was a nervousness of which many, many thousands of people have without ever going to the doctor, is that not correct? A. I presume so.
"Q. And there are a great many people in this country with high blood pressure that go along about their duties, are there not, that never pass away with heart disease, but some other disease perhaps? A. No doubt that's true.
* * * * * *
"Q. So that, doctor, during this entire time of, we will say, a year and a half, there is no statement in Dr. Gitt's certificate there that this man had heart disease, is there? A. All I see is, `Anxiety state with hypertension, moderate.' I don't know how much anxiety or how much hypertension. * * * I don't know what he means by `moderate'."
Dr. McAdam further testified that hypertension was high blood pressure and a disease of the circulatory system. He further stated that "hypertension, moderate" might not necessarily be the onset of a heart condition; that one could have hypertension without having heart disease, but a great many types of heart disease are caused by hypertension. He further stated:
"As a rule, heart disease follows several * * * years of preceding hypertension.
* * * * * *
"Q. Hypertension is not heart disease, is it, in any way, shape or form? A. Not necessarily. You can have hypertension without necessarily having heart disease.
"Q. And hypertension and anxiety state together would not necessarily be indicative of a heart disease, would they? A. Not necessarily."
Dr. McAdam testified that angina pectoris was a symptom of coronary artery disease or some disease of the heart itself. He stated that the coronary arteries are the arteries which supply the heart muscles with blood; that they originate in the aorta and are distributed over the surface of the heart, both front and back, and extend into the muscle fibers of the heart. He further testified that coronary artery disease was a disease of the heart, which we think of as developing over a period of several years, and that it would not be unusual to find angina pectoris and coronary artery disease in a man in October or November of 1947 whose examination in July of 1946 showed he had hypertension, moderate; that such is the usual course of events; that angina pectoris and coronary artery disease are generally considered to be diseases of long standing, at least longer than a period of three months.
Dr. McAdam further testified that hypertensive heart disease is a form of heart disease which is caused by hypertension, or increased tension in the vascular system; that as a rule such heart disease follows several years of preceding hypertension.
Dr. McAdam stated that myocardial infarction is a type of disease which occurs after an occlusion or blocking of one of the coronary arteries. He also described the condition as a scar that develops in the heart muscle after there has been an occlusion. He stated:
"The heart muscle, when it is deprived of its blood supply, at the time of a heart attack, the coronary occlusion forms a scar and the muscle tissue is itself destroyed; that leaves a scar over the surface of the heart and that is generally a weak place in the heart and those are often the site of subsequent rupture of the heart causing sudden death. * * * It (myocardial infarction) could be a recent development, but generally, more generally, it follows a long standing disease of the coronary arteries.
* * * * * *
"Q. You would not find infarction unless there had been a heart disease of some considerable length of time, would you, doctor? A. That's correct; you have to have the preceding disease or something that would cause an occlusion. * * * Generally, it might be an embolus or anything that is a clot from another portion of the body, but generally we think of the thrombosis as causing the infarction. * * * A thrombosis is a stoppage of the circulation of the heart by an occlusion or shutting off of the coronary artery."
Further testifying, Dr. McAdam stated that arteriosclerosis is hardening of the arteries which requires many years to develop. He further testified:
"Now, second, coronary thrombosis * * * can that be a sudden onset in a perfectly healthy heart or does the heart have to be generally affected before you have thrombosis? A. I presume that its possible to have a coronary — it is possible to have a coronary thrombosis of very sudden origin, but usually they have the arteriosclerotic basis or cause. Most of these coronary thromboses occur on the basis of arteriosclerotic plaques or hardening of the arteries.
"Q. The third one is myocardial infarction? A. Myocardial infarction would mean at autopsy they found the presence of an infarct or scar in the heart muscle which resulted from previous occlusion * * * and that was on the basis of arteriosclerosis or generalized hardening of the arteries, would be my interpretation.
"Q. * * * in your opinion as a medical expert, would you say that a man who died, as shown by an autopsy — the immediate cause of death shown to be arteriosclerotic coronary thrombosis and myocardial infarction — had had a heart disease of some years standing or of recent development? A. My interpretation would be this would be a chronic condition which probably required several or many years to develop. I could not consider this as any acute condition."
The witness further testified that myocardial infarction could be of recent origin or within three months of the time of death, but that he could not visualize a coronary artery disease and sclerosis, as described in the physicians' statements, as developing over such a short period of time.
Further testifying, Dr. McAdam stated: "Q. Doctor, would you say that a man who died on January 4, 1948, suffering from arteriosclerotic coronary thrombosis, myocardial infarction, could have possibly been in sound health on May 7th of the preceding year? A. No, he would have had to have some chronic disease present, I should think, in my opinion. * * * I would not say that a man suffering from an anxiety state with hypertension, moderate, was in sound health. I would say he was suffering from bodily or mental disease. I would say that a man suffering from angina pectoris and coronary artery disease was not in sound health. I would say that a man suffering from hypertensive heart disease with myocardial infarction was not in sound health."
Assigned as error is the refusal of the trial court to sustain defendant's motion for a directed verdict. In support of this assignment appellant urges that a directed verdict should have been given for the reason that it conclusively appears from the proofs of death submitted by the plaintiff that the insured was not in sound health on the date the policies were issued, but was then suffering from the disease which subsequently caused his death.
We have carefully considered this evidence and have reached the conclusion that it cannot be said that these proofs of death were such admissions as to preclude recovery in this action. In these proofs of death there is an admission by plaintiff that on January 3, 1948, the insured was afflicted with hypertensive heart disease and myocardial infarction, and that insured's death the following day was due to arteriosclerotic coronary thrombosis and myocardial infarction. This appears from the statement of Dr. Michael M. Karl (Defendant's Exhibit 3), and the certified copy of the death certificate (Defendant's Exhibit 5).
In defendant's Exhibit 3 Dr. Karl also states that the duration of the disease he found on January 3 and 4, 1948, was unknown, and that in his opinion insured's health was first impaired in July, 1946. This last statement could hardly be construed as referring to the existence of the above mentioned disease, in view of Dr. Karl's statement that its duration was unknown. Insured's health might have been impaired in 1946, and on the date the policies were issued, but unless it appears that such impairment on the date the insurance was taken out was due to the disease which caused or contributed to insured's death, plaintiff would be entitled to recover. Defendant did not establish its defense as a matter of law by the introduction in evidence of defendant's Exhibits 3 and 5.
Nor can the statement of Dr. Gitt contained in defendant's Exhibit 2 be said to conclusively establish that insured was, on May 7, 1947, afflicted with the disease that caused his death. Dr. Gitt treated insured in 1946 for "anxiety state with hypertension, moderate"; but, according to defendant's own evidence, such condition does not necessarily mark the onset of heart disease, and one could have hypertension without having heart disease. There is, therefore, no admission in this statement that insured had heart disease either at the time of Dr. Gitt's treatment, or when the policies were issued.
Defendant's Exhibit 4 was a statement signed by Dr. Max S. Franklin, in which he stated that on November 1, 1947, insured was suffering from angina pectoris and coronary artery disease, but there is no admission in the statement that this condition existed on May 7, 1947. In the space on the Exhibit which called for information as to the duration of the disease, Dr. Franklin wrote: "according to the patient, onset of illness was about three months ago"; and in answer to the question calling for his opinion as to when insured's health was first impaired, he wrote, "recently."
While it is true that defendant's witness Dr. McAdam testified that in his opinion hypertensive heart disease, as a rule, follows several years of preceding hypertension, such testimony merely made an issue for the jury. The burden of proof was on the defendant to prove its defense, and the jury might very well have found that the defendant had failed to show that the hypertension spoken of by Dr. McAdam had, on May 7, 1947, exceeded that which normally appears in a man of insured's age, and had reached the point where it would be classified as a disease. This is especially true in view of Dr. Karl's statement that the duration of the disease was "unknown"; and in view of Dr. Franklin's statement that insured's health was first impaired "recently." Dr. McAdam also admitted that myocardial infarction could be of recent origin, or within three months of the time of death. For the same reasons, defendant did not, as a matter of law, establish the defense that the policies were void for the reason that insured had been treated for serious disease within two years prior to the date of the policies.
In our opinion, this issue of sound health was for the jury. Bruck v. John Hancock Mutual Life Insurance Co., 194 Mo.App. 529, 185 S.W. 753.
Appellant, by an assignment of error, complains that the verdict is against the weight of the evidence. This is not a ground upon which an appellate court may interfere. Raifeisen v. Young et al., 183 Mo.App. 508, 167 S.W. 648.
Appellant also assigns as error the refusal of the trial court to discharge the jury and declare a mistrial on account of improper remarks which appellant claims were made by plaintiff's counsel in his closing argument. The remarks complained of were with reference to defendant's failure to call as witnesses the three physicians whose statements were submitted by plaintiff as a part of the proof of death. The incident in question is found in the following excerpt from the record:
"Mr. Brooks: * * * I think there is only one basis that you can use in deciding this case and that is, was Jeff Fisher ill at the time he took out this policy and was that illness the cause of his death? Was that illness the cause of his death? If it wasn't, the plaintiff is entitled to recover.
"Now, hypertension, we have understood from the doctor and heard all day, is not heart disease. Anxiety state is not heart disease. Now, Mr. Lamkin was quoting the doctor making the statement in a vast majority of cases it would take years to develop these things from which Jeff Fisher passed away, but did the doctor really say that, gentlemen? Didn't he say in the majority of cases, or some such remark as that? He didn't emphasize the fact that it couldn't have happened within recent months. He said generally speaking it takes a long time, but he didn't say that was true in Jeff Fisher's case. Generally speaking. Here is a man that is a general practitioner, not even a heart specialist, from what I heard him say, comes in here, he wants to tell us what happened to Jeff Fisher, how he died, based on three little pieces of paper which are filled out forms.
"If the burden of proof is on the defendant, as the Judge in the instructions has stated, to prove that this man had an illness, why didn't they bring in these doctors?
"Mr. Lamkin: May it please the court, I have made objection to that once before today; the court has called Mr. Brooks down on it. I will ask that Mr. Brooks be reprimanded at this time for again referring to the fact that we didn't bring in certain doctors; they were just as available to be brought in by the plaintiff if he had wanted to bring them in. I object to it. The court corrected him once on that.
"Mr. Brooks: I don't believe the court has corrected me.
"The Court: I will refrain from making the reprimand, Mr. Lamkin, especially in view of the form in which the argument is presented. There is no accusation about anything; it's merely put in the form of a question.
"Mr. Lamkin: May it please the court —
"The Court: I will deny the request for a reprimand.
"Mr. Lamkin: — I think it's highly prejudicial, your honor; I ask for a mistrial.
"The Court: I will deny that motion.
"Mr. Brooks: The plaintiff could have brought in these doctors, that's true, but the burden of proof isn't on the plaintiff and we would have to pay those doctors for their expert testimony and that's why we didn't bring them in."
The law applicable to this matter is well established. Under the decisions, it is not permissible for counsel in his argument to the jury to comment on the failure of the adverse party to produce a witness if said witness is one who is equally available to both parties. Atkinson v. United Railways Co., 286 Mo. 634, 228 S.W. 483; Cooper v. Metropolitan Life Insurance Co., Mo.App., 94 S.W.2d 1070; Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760; Raines v. Small et al., Mo.App., 169 S.W.2d 102. Nor can the failure of a party to call a witness who is more available to his adversary be made the basis for a prejudicial inference against said party.
In the case at bar the doctors, concerning whose absence comment was made by plaintiff's counsel, were the doctors selected by plaintiff's deceased husband to attend him. They were, therefore, more available to plaintiff than they were to defendant. Chavaries v. National Life Accident Insurance Co., Mo.App., 110 S.W.2d 790.
The case last above mentioned was a suit on a policy of life insurance where the defense was (as in the case at bar) a breach of the sound health warranty. During the closing argument defendant's counsel was not permitted to comment on plaintiff's failure to call as a witness the doctor who had treated the insured and who had signed the physician's statement which was submitted as a part of the proof of death. This court held that such refusal was error for the reason that said doctor was more available to plaintiff than he was to defendant. In that case the court said: "Now the term `available,' in the sense in which we are using it, does not mean merely available or accessible for the service of a subpoena, since any witness who can be found may be subpoenaed at the instance of either party to a cause. To the contrary, the question of whether a witness is `available' to one or the other of the contending parties depends upon such matters as the one party's superior means of knowledge of the existence and identity of the witness, the nature of the testimony that the witness would be expected to give in the light of his previous statements or declarations, if any, about the facts of the case, and the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation, and make it natural that he would be expected to testify in favor of the one party and against the other. In other words, a witness may be said to have been peculiarly `available' to one party to an action, so that upon that party's failure to have produced him in court an inference will arise that his testimony would have been unfavorable, when, because of such party's opportunity for knowledge of or control over the witness, or the community of interest between the two, or the prior statements and declarations of the witness, it would be reasonably probable that the witness would have been called to the trial to testify for such party except for the fact that it was either known or feared that his testimony on the stand would have been damaging rather than favorable." Chavaries v. National Life Accident Insurance Co. of Tennessee, Mo.App., 110 S.W.2d 790, loc. cit. 794, 795.
If we apply the foregoing test to the facts in the case at bar, we cannot escape the conclusion that the doctors whose signatures appear on the proofs of death were more available to plaintiff than they were to defendant, and that it was error to permit counsel for plaintiff to comment unfavorably on defendant's failure to call them as witnesses. But respondent says that the rule does not apply where the party against whom the unfavorable comment is made has the burden of proof. In support of this contention, respondent cites State ex rel. Kansas City Public Service Company v. Bland et al., 325 Mo. 505, 30 S.W.2d 445. We do not believe said case lends support to such theory. That case merely holds that it is not error to comment unfavorably on the failure to produce a witness to give testimony on a subject concerning which no evidence has been offered by the objecting party. Such is not the situation in the case at bar.
In the case at bar, there was substantial evidence offered by defendant in support of the defense of breach of warranty. The argument of plaintiff's counsel, therefore, cannot be said to have been harmless. It constituted reversible error.
An examination of the other assignments of error lead us to believe that the matters complained of therein are not likely to occur upon a retrial of the case. We will, therefore, not pass upon them.
The judgment appealed from is reversed, and the cause is remanded for a new trial.
HUGHES and McCULLEN, JJ., concur.