Frazier v. Metropolitan Life Insurance
141 S.W. 936
Mo. Ct. App.
1911
Check Treatment
CAULFIELD, J.

(after stating the facts). — I. Defendant contends that its peremptory instruction, in the nature of a demurrer to the evidence, should have been given at the close of all the evidence. In making this contention the defendant assumes that its affirmative defense was conclusively established as a matter of law and that there was nothing left for the jury to determine. This assumption is not well founded. The burden of proof as to this defense devolved upon the defendant. [Winn v. Modern Woodmen of America, 157 Mo. App. 1, 137 S. W. 292.] The condition of the policy to which this defense related, —that the insured must have been in sound health when the policy was issued —amounts to nothing more, under our statute, than a representation, the falsity of which renders the policy void only if the matter misrepresented actually contributed to the death of the insured, “and whether it so contributed in any case shall be a question for the jury.” [Sec. 6937, R. S. 1909; Salts v. Prudential Insurance Co., 140 Mo. App. 142, 120 S. W. 714.]

The sole proof which defendant relies upon as conclusive against the plaintiff, consists of the state*717ments in the doctor’s certificate. Being contained in the proofs of death, they were admissible in evidence against the beneficiary as admissions by her of the truth of the statements therein contained. But such admissions are not conclusive against her, since -there are no elements of estoppel in the case. [Newcomb v. Jones, Admr., 37 Mo. App. 475; Queatham v. Modern Woodmen, 148 Mo. App. 33; 127 S. W. 651; Insurance Company v. Newton, 89 U. S. 32.] It was competent for her to explain the alleged admissions, and to show that she was under a mistake in making them, or to prove any other circumstances which will do away with their effect. [Duncan v. Matney, 29 Mo. 388; Wild v. B. & L. Assn., 60 Mo. App. 200.] The evidence before us is uncontradicted that the plaintiff made the doctors’ certificates part of the proof of death in the hour of her bereavement, amidst the distractions incident thereto. They were not read by or to her, nor were their contents or purport explained. She was without her glasses, hence could not read. She signed where she was told to sign. All this would have justified the jury in giving no effect to the so-called admissions. This contention, is ruled against the defendant.

II. Defendant’s next contention is, that the trial court erred in refusing to permit the attending physician of the insured, Dr. Strode, to testify. The defendant concedes that he would have been incompetent under the statute (Sec. 6362, R. S. 1909), had his incompetency not been waived, but insists that the provisions of the policy and the submission of proofs of death thereunder constituted such a waiver. There is no doubt that, by a provision in the policy itself, the insured may waive in advance the incompetency of the physician to testify, and bind her beneficiary by such waiver. [Keller v. Home Life Ins. Co., 95 Mo. App. 627, 69 S. W. 612.] But waiver depends solely *718on the intention of the party against whom it is invoked. [Stiepel v. Mutual Life Assn., 55 Mo. App. 224.] The language- relied upon in the policy to constitute a waiver is as follows: “Proofs of death under this policy shall he made upon blanks to be furnished by the company and shall contain answers to each question propounded to the claimant, physicians and other persons. . . . All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against, the company.” This language fails to express any intention of the insured to waive the privilege in question. • It does apparently contemplate that the answers to be propounded to the physicians thereunder might be read in evidence upon a trial; but what such answers shall relate to is not stated. Nothing appears to indicate that they might disclose information acquired by the physician from the insured while attending her in a professional capacity, and necessary to enable him to prescribe for her as a physician; nor that they were to relate to the medical history or cause of death of the insured. The insured might well have believed from the nature of the instrument which was to contain the answers, that they would be confined within the proper scope of mere “proofs of death” and relate to nothing else than the fact of death. We are of the opinion that the language of the policy discloses no intent to waive the privilege accorded by the statute or to consent to anything inconsistent with the retention of such privilege.

But the defendant asserts that even if the foregoing be true, the plaintiff did waive the privilege in question because the proofs of death contained disclosures by the doctors of a privileged nature, It is sufficient to say of this that the plaintiff had no knowledge whatever of the contents of the doctors’ certificates. The state of the evidence is such that her lack of knowledge may be treated as conceded. And it is *719clear that disclosures made without her knowledge cannot be used to fasten a waiver upon her. "Waiver presupposes both knowledge and acquiescence. [Haysler v. Owen, 61 Mo. 270.] The same reasoning will dispose of defendant’s argument that plaintiff waived her privilege by moving for an order on defendant to produce the proofs of death and doctors’ certificates for the plaintiff to inspect and introduce in evidence, “if found proper.” There is nothing in the case to indicate that plaintiff or'her attorney knew at the time they filed the motion that the papers asked for contained a disclosure of privileged information. They might well have thought they were barren in that respect. It would be harsh indeed to hold that by merely asking leave to inspect a paper, the contents of which are unknown, the plaintiff would thereby become bound as for the disclosure of privileged information which she had no reason to suppose the paper contained. We know of no authority for such a holding and have no desire to create any.

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.