Weiss v. John Hancock Mutual Life Insurance , 178 Minn. 120 ( 1929 )

¹ Reported in 226 N.W. 516. Appeal by defendant from a judgment in municipal court.

Action by beneficiary and claimant to recover $220 for death of his daughter, the insured, under an industrial or weekly premium, nonmedical policy, dated and delivered July 29, 1925. Case was tried to the court without a jury. The answer admitted the death of insured. The policy of insurance was introduced in evidence by plaintiff and received without objection. Plaintiff then rested. The policy contained the following provision:

"This policy shall not take effect unless upon its date the insured shall be alive and in sound health.

"Policy When Void. This policy shall be void: (1) If the insured * * * has attended any hospital, or institution of any kind engaged in the care or cure of human health or disease, or has been attended by any physician, within two years before the date hereof, for any serious disease, complaint or operation; or has had before said date any * * * disease of the heart * * * unless each such * * * medical and hospital attendance and previous disease is specifically waived by an indorsement in the space for indorsements on page 4 hereof signed by the secretary."

During the progress of the trial defendant offered in evidence a certain exhibit, being a certificate of the attending physician, upon which plaintiff had signed the following indorsement: "It is hereby admitted and agreed that this certificate shall be considered as part of the proofs of death under policy * * * in accordance with the conditions thereof." This certificate, made by the attending physician, upon a lengthy blank furnished by the defendant, showed that he had personally known the deceased only since November 30, 1926. She died on December 14, 1926. It gave as a cause of death myocardial insufficiency of unknown duration and that the secondary contributing cause of death was mitral regurgitation and stenosis of unknown duration. He further stated in the certificate, contrary to his previous statement therein, that he had attended her, prior to her last illness, in the years 1921, 1923 and 1924 for cardiac decompensation and that she had been an inmate of or received treatment in the Minneapolis General Hospital in 1921, 1923 and 1924. The reception of this exhibit was objected to by plaintiff as incompetent, irrelevant and immaterial, also as hearsay, and further that defendant was seeking indirectly to put in evidence testimony which it could not put in directly because of the privilege statute of the state. The court received the exhibit subject to the objection with a ruling to be made later. Plaintiff excepted. The court later, on an offer by defendant of certain hospital records in evidence, to which objection was made by plaintiff, stated: "We will take it subject to your objection, and we will submit the whole thing at the end of the trial." Plaintiff then noted an exception. The court made no rulings whatever on the admissibility of the evidence, nor was any further request made therefor, the case being settled with the record as above indicated. The court made findings of fact and conclusions of law in favor of plaintiff; defendant moved for amended findings and for judgment in its favor. The court denied the motion and ordered judgment, which was entered accordingly. There was no motion for a new trial.

In its findings, the court stated: "That no competent evidence was offered upon the trial of this case by the defendant to prove a violation of any of the terms of said policy * * * [being those hereinbefore quoted]." (Defendant assigns as error this finding of the court.) The record is not in a condition to permit a disturbance of the judgment. The findings indicate that the evidence offered by the defendant and objected to by plaintiff was not considered as competent and was not taken into account by the court in reaching a decision. Manifestly, without that evidence no defense was proved. The court probably used the word "competent" as meaning "admissible." State v. Johnson, 12 Minn. 378, 387 (476), 93 Am. D. 241. It may have been rejected because it was hearsay or because it was violative of the privilege statute. If the evidence referred to was in the case it so remained until and unless there was a ruling excluding it. In that situation it was not incumbent on the defendant to seek any further ruling. If the finding referred to amounted to a ruling excluding it, there was no opportunity at that stage of the proceeding for defendant to enter an exception. Defendant then might have obtained a review by assigning the finding or ruling as error in a motion for a new trial. No motion for a new trial was made. Another course was open to defendant; it might have made proper application to the court for direct rulings on the admissibility of the proffered evidence and, an exception being taken to adverse rulings, secured a proper settled case and then proceeded in the customary way. This was not done.

It is not necessarily reversible error in the trial of an action without a jury for the trial court to permit the introduction of testimony subject to the objection that it is incompetent and immaterial, reserving the ruling thereon, and the right subsequently to disregard the same if determined to be inadmissible. 6 Dunnell, Minn. Dig. (2 ed.) § 9737, and cases cited. "No error in a ruling on the trial, * * * even on a controlling proposition of law, can be reviewed on an appeal from a judgment, if appellant did not take an exception on the trial or in a motion for a new trial." 1 Dunnell, Minn. Dig. (2 ed.) § 388a; Cincinnati T. R. Co. v. Loe, 152 Minn. 374, 188 N.W. 1011. In Hogan v. Vinje,88 Minn. 499, 93 N.W. 523, and State ex rel. Village of Delano v. G. N. Ry. Co. 114 Minn. 293, 131 N.W. 330, there were motions for a new trial. On the state of the record the matter cannot be reviewed here.

Judgment affirmed.