Connor v. Metropolitan Life Insurance , 78 Mo. App. 131 ( 1899 )

BIGGS, J.

The defendant insured the life of John Oonnor, deceased, for the benefit of plaintiff. In answer to questions contained in the application for insurance, dated October 7, 1894, the assured stated that he did not have syphilis, and that he had not been a patient at any hospital, and that he resided at number 1403 North Seventh street, city of St. Louis. The defendant averred that the answers were untrue; that at the time the insurance was applied for the deceased did have syphilis; that he had previously been treated for it at the St. Louis Hospital, and that he died from the effects of the disease.- The falsity of these answers was the only controversy at the trial. All other questions entitling plaintiff to recover were conceded. The judgment was for plaintiff and the defendant has appealed.

The defendant introduced as a witness Dr. M. J. Epstein, who testified that in 1893, he was resident physician at the city hospital in St. Louis. He identified the record kept by the officials of the hospital concerning the case of one John Oonnor. Refreshing his memory from the record, he testified that on the second day of November, 1893, a man by the name of John Oonnor was admitted to the hospital, and that he treated him for syphilis; that he was born in Ireland; that he was forty-one years old; was a single man, and lived at number 1403 North Seventh street in the city of St. Louis. The defendant offered in evidence tire record, which, the court excluded. In rebuttal the evidence of plaintiff tended to prove that number 1403 North Seventh street, represented the entrance to two compartments of the building, one in front, and the other in the rear; that the deceased lived in the front portion; that during the year of 1892 or 1893, a man by the name of John Oonnor lived in the rear part of the house; that he was about the age and size of the deceased, and somewhat' resembled him in other respects.

The first assigment of error pertains to the refusal of the court to admit in evidence the record kept by the officers of the city hospital. The hospital is a city institution,, and the ordinances require the managers to keep a registery of all cases, etc. The defendant has cited no case that supports the assignment. In the case of St. Louis v. Arnot, 94 Mo. 275, the opinion contains a statement that gives some countenance to the contention, but the observation was obiter dictum. The court of appeals of New York (Buffalo v. Knight Templars, etc., 126 N. Y. 450) has decided the question adversely to defendant. That court, decided that the records kept by the board of health of the city of Buffalo were not competent evidence in a suit between two citizens, although by the laws of the state and the ordinances of the city the board was required to keep them. There can be no difference in principle between that case and this. The New York court held that the statute and ordinances were police regulations, and that the records were required to be kept for local and specific purposes, and were not public records in that sense that made them competent evidence for all purposes. We are inclined to the opinion that this was the proper view and we so rule here. But the defendant could not have been seriously prejudiced by the ruling for the court permitted Dr. Epstein to refresh his memory from the record, and he gave his testimony with it before him so that practically the defendant derived the full benefit of its contents.

The court refused to give the following instruction asked by the defendant, and of which it complains:

“The jury are instructed that if they believe, from the evidence, that prior to the time John Oonnor, deceased, applied for and obtained the policy of insurance sued on, he had been treated as a patient in the city hospital for syphilis and afterwards died of the same disease, then they will find for defendant.”

This instruction was well enough, but the circuit court in its charge to the jury fully covered the same ground. The issues were simple and easily understood, and the jury under the instructions given by the court was bound to understand them. Hence the defendant has no room for complaint.

The court refused to give the following instruction asked by the defendant.

“The jury are instructed that, in this case, the burden of proof is on the plaintiff to prove that John Oonnor, whe was at the city hospital from November 2nd to December-6th, 1893, was not the John Oonnor insured.”

This instruction was properly refused. The vice in it is that it assumes as a fact that there was a man by the-name of John Oonnor in the city hospital.

Finding no reversible error in the record, the judgment of the circuit court will be affirmed.

All concur.