Life & Casualty Ins. v. Walters

Appellant appeals here from an adverse judgment in favor of appellee, Mrs. Lena Walters, the beneficiary in a life insurance policy. This case has been before this court on a former appeal,180 Miss. 384, 177 So. 47, 48, and was reversed and remanded because the court below erroneously excluded certificates from the records of vital statistics of the State Board of Health showing the facts with reference to the death of the insured, and of the birth of her stillborn child. The insurance company defended on the ground that the policy provided that it was not liable under its contract "if insured is pregnant at date of issue of policy and death results from such pregnancy." The appellee introduced the contract of insurance, proved that it was in force at the date of the death of the insured, and that she had been named beneficiary by her daughter, Mrs. Naomi Walters Ainsworth. This daughter died on March 10, 1937, the cause of her death being puerperal sepsis, as disclosed by the proof of death sworn to by Mrs. Lena Walters. The policy of insurance was in force at her death, and was dated November 30, 1936. The insurance company offered a certificate, duly certified to by the Vital Statistics Department of the State Board of Health, which disclosed that on March 4, 1937, Mrs. Naomi Walters Ainsworth gave birth to a stillborn male child. This certificate was made by Dr. O.B. *Page 768 Crocker, the attending physician. Therein, there was printed this query: "If stillborn, period of gestation," and the physician's reply thereto was "about 6 mos." For the appellant, Dr. Golden, as an expert physician, testified that puerperal sepsis was caused by childbirth, and also made this positive statement: "Lawyer, you can't have puerperal sepsis without having the delivery, that is what I want to get over to the court. When you have puerperal sepsis, you have got to have pregnancy and delivery before you have puerperal sepsis." On cross-examination, the physician stated that the disease, puerperal sepsis, was the prime cause of death, but was due to the pregnancy and birth of a child. In that view, the disease — blood poisoning — would occur by infection after or at the time of or on the occasion of a birth of a child. In rebuttal, the beneficiary testified that her daughter, the insured, visited her on December 10, 1936, and on that date the insured was menstruating. That, thereafter, on December 21, 1936, the insured was married to Velma Joe Ainsworth. In surrebuttal, the expert physician testified that some women menstruate after pregnancy, but that under normal conditions women stop menstruating after pregnancy. No witness, who was present on March 4th and had seen the stillborn child, was offered or testified. Miss Holifield, mentioned in the former opinion, did not testify on this trial. The motion for a new trial discloses that "she had gone back" on her testimony in the first trial. We do not think the appellant was entitled to a peremptory instruction in this case. The defense relies on the certificate of the attending physician, which stated that the foetus of the stillborn child was of about six months gestation. Therefore, from the date the policy was issued, November 30, 1936, to March 4, 1937, there intervened only three months and four days, and consequently the insured must have been *Page 769 pregnant about six months, or at least more than five months. Appellant relies upon Section 4907 of the Code of 1930, which provides as follows: "Certificates of registrar to be prima facie evidence. — Any copy of the records of birth, sickness or death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima facie in all courts and places of the facts therein stated." Appellant relies upon this certificate and the statement that the period of gestation of the stillborn child was about six months. "About" means near to, and is to some extent uncertain and indefinite; and, in addition to that, the evidence that the insured was menstruating on December 10, 1936, after the date of the issuance of the policy and before her marriage on December 21, 1936, created an issue of fact for the jury. The jury had a right to indulge the presumption of chastity and honesty in the deceased female. We have not overlooked the fact that the physician testified that normal women do not menstruate after becoming pregnant. The exact time of utero-gestation can never be ascertained with certainty. See Herzog, Medical Jurisprudence, Sec. 956. The burden was upon the appellant to show that the insured was pregnant on the day the policy was issued; and we are of the opinion that this was a question for the jury in the light of the fact that the certificate was only prima facie evidence of the facts therein contained. The court erred, in our opinion, in excluding Rule 8 of the State Board of Health, the material fact of which was in these words: "Provided that a certificate of birth shall not be required for a child that has not advanced to the fifth month of utero-gestation." Section 4907 authorized the promulgation of such rules as to births. This rule tended to explain what the reporting physician meant by the use of the words "about six months" as to the period of gestation of this stillborn child. He was not required to report this birth unless *Page 770 this child had advanced to the fifth month of gestation. The jury might infer that the physician would not do a vain thing by reporting such births which were of less than five months' period of gestation. The court gave these instructions to the jury for the appellee: "The court instructs the jury for the plaintiff that the burden of proving that the insured was pregnant at the time of the issuance of said policy and that her death was the direct or proximate cause of said pregnancy, is upon defendant and unless you believe from a preponderance of the evidence that insured was pregnant and said death resulted from said pregnancy, it is your sworn duty to find for plaintiff." "The court instructs the jury for the plaintiff that the policy and receipts herein sued on together constitute the entire contract between insured and defendant company, and the burden of proving insured pregnant is upon defendant company and unless you believe from a preponderance of the evidence that insured was pregnant at the date of the original receipt, and such pregnancy resulted in the death of insured, it is your sworn duty to find for plaintiff." The court gave this instruction to the jury for appellant: "The court instructs the jury for the defendant that it will be your sworn duty to find a verdict for the defendant, Life Casualty Insurance Company, if you find from the preponderance of the testimony that the insured, Mrs. Naomi Walters Ainsworth, gave birth to a stillborn child which had been conceived for more than three months and four days before its birth." It will be readily observed that the instructions given by the court for appellee are in hopeless conflict. The first quoted instruction for appellee was unintelligible because it is inconceivable that death would cause pregnancy. By the second instruction, the court submitted two issues of fact to the jury: (1) That the death of the insured *Page 771 was the direct and proximate result of pregnancy of the insured; and (2) that insured was pregnant at the date of the receipt for dues. By the instruction for appellant, the jury was limited to the issue of fact as to length of time insured was pregnant. In other words, the last instruction eliminated from the jury the issue of fact as to pregnancy having resulted in her death. There was no issue in the evidence that on March 4, 1937, the insured was pregnant; and there was no conflict in the evidence that she died from puerperal sepsis. "Puerpera" is defined in Webster's New International Dictionary, 2nd Edition, "A woman in childbirth, or in the period succeeding it." "Puerperal" is defined therein as "Of or pertaining to childbirth; as, a puerperal fever." There is no room to argue but that the insured died as a result of her pregnancy. Therefore, the court erred in submitting that issue to the jury for appellee. We have heretofore determined that it was proper to submit the issue of whether or not she was pregnant on the date the policy sued on herein was issued. We think from the evidence in this case the policy sued on shows on its face that it was issued on November 30, 1936, and whether or not the insured obtained some rights by the several receipts issued prior to that time is of no consequence here. We think the quoted instruction granted to the appellant was correct, and therefore the quoted instructions granted the appellee were not. They were in such hopeless, irreconcilable conflict as to demand a reversal of this case. For the reasons given above, let this case be reversed and remanded. Reversed and remanded.