175 So. 148 | La. Ct. App. | 1937
This is a suit on a policy of industrial life insurance by the beneficiary named therein, in which the face value of the policy, $124, is claimed.
The defendant insurer resists liability on the following grounds: (1) That the policy had lapsed for nonpayment of premiums on May 6, 1935, and that it was never effectively reinstated, notwithstanding an abortive effort to accomplish this result. (2) In the alternative, if it should be held that the revival application made by the insured on July 24, 1935, had the effect of reinstating the policy, then the policy is nevertheless void because the insured made certain material false representations concerning the condition of her health in her application for reinstatement.
There was judgment below in favor of the defendant, dismissing the plaintiff's suit, and he has appealed.
The first question presented for our consideration pertains to the reinstatement of the policy. It appears that, on July 24, 1935, the policy having lapsed for nonpayment of premiums from and after May 26, 1935, the assured made written application for revival. In this application, the insured agreed: "I hereby declare that the statements recorded above are true and complete, and I agree that any misrepresentations on this revival application shall render the policy void; and that the policy shall not be binding upon the Company unless upon the date this application is approved I am alive and in sound health."
Two days prior to the making of the revival application, the insurance company accepted from the assured premiums in the sum of $1.30. The assured died on July 29, 1935, and the revival application was approved on August 5, 1935. Inasmuch as the insurance company reinstated the policy, we can attach little importance to the fact that the assured died prior to the date the application was approved.
The reinstatement had the effect of granting coverage to the insured from the date of lapse on May 6, 1935, until the date of her death on July 29, 1935, and we hold that the defendant cannot now assert that the application for revival of the policy was ineffective, in view of its *150
approval on August 5, 1935. The clause in the policy, which provides that the application for reinstatement shall not be effective unless on the date thereof the insured is living, was inserted solely for the benefit of the insurance company. If the defendant had refused to reinstate the policy, the point insisted upon might be well taken, but the fact that it approved the application for revival now estops it from claiming that coverage was not granted until the date of the insured's death. Should we conclude otherwise, the result would be to permit the insurer to receive and earn premiums for the period elapsing from the date of the application until the time the policy is issued or reinstated, without granting protection to the insured. Compare Embert v. Woodmen of the World,
The next contention made by the defendant is that the policy is void because the insured made certain false statements in the revival application concerning the condition of her health. To substantiate the defense, it offered in evidence a record of the Charity Hospital which shows that the assured had been treated in that institution for syphilis, carcinoma of the cervix, and vesicovaginal or uterine fistula covering a period from July 30, 1934, to April 25, 1935. This record, if admissible in evidence, amply and plainly exhibits that the insured made false statements in regard to her health when she applied for a reinstatement of the policy, because in her application she represented that she was in good health and had never been treated in any hospital or by a physician. Under our opinion in Fox v. Life Ins. Co. of Virginia, 170 So. 55, in interpreting Act No.
However, counsel for plaintiff objected to the introduction of the Charity Hospital record on the ground that it was hearsay, and his main argument in this court is directed against the action of the trial judge in allowing the document to be admitted in evidence.
Shortly after the suit was filed, the defendant insurance company applied for and obtained an ex parte order for the Charity Hospital to furnish a certified copy of the hospital record of Evelyn Jefferson, the insured. In compliance with this order, the hospital delivered to defendant's counsel a certified copy of a chart or record of the illness of the insured, which is signed by Roy W. Wright, assistant superintendent. The defendant offered this chart in evidence under the provisions of Act No.
Prior to the passage of the foregoing statute and Act No.
Act No.
In construing the foregoing statutes in the case of Dolan v. Metropolitan Life Ins. Co.,
Act No.
The plaintiff complains that, under the ruling of the trial judge, he was deprived of the right of cross-examination which was granted to him by the statute. We find no merit in this point because he was aware of the fact that the Charity Hospital record would be offered against him, inasmuch as the defendant set forth, in its answer, that the records of that institution disclosed that the insured had been treated there. Therefore, having knowledge of the fact that these records would be offered by the defendant, counsel for plaintiff should have moved for a continuance of the case and requested the court to allow him time to summon the persons, who made the record, for cross-examination. We believe that it would be a far better practice for a party litigant desiring to take advantage of the provisions of Act No.
Counsel for plaintiff also maintains that the chart or record is inadmissible because it is certified to by the assistant superintendent of the hospital, whereas the statute requires that it be certified by the superintendent or secretary treasurer of the board of administrators. We find considerable force in this postulation. The Legislature has provided that these certified copies of records or charts are admissible in evidence and constitute prima facie proof of their contents when they are signed by the superintendent or secretary treasurer of the board of administrators of the hospital. It is plain that the designation of the superintendent or secretary treasurer of the board is exclusive and negatives the right of any other official connected with the hospital to sign the certified copies which are to be used in a court proceeding.
In view of the requirements of the law, the trial judge was in error in admitting into evidence the record of the Charity Hospital which is not certified in accordance with the statute. We believe that, under the circumstances of the case, it should be remanded for a new trial and that the defendant should be accorded the right to have the hospital record admitted in evidence (if properly certified), with reservation to plaintiff of the right to call the persons making the original record for cross-examination.
For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that this cause be remanded to the First city court of New Orleans for further proceedings according to law and consistent with the views herein expressed. Defendant and appellee to pay the costs of this appeal.
*152Reversed and remanded.