England v. First Natl. Life Ins.

HIGGINS, J. Plaintiff, as beneficiary, brings this suit to recover the sum of $268, the aggregate face value ofi two policies of industrial life insurance in which her daughter, Lillie England, was insured. The petition alleged that the policies were issued by the defendant; that all premiums had been paid; that the policies were in full force and effect, and that upon the death of the insured proper proof of death was- filed with the defendant. The defendant answered admitting these allegations, but specially pleaded that only one-half of the face value of the policies was due or $134 (which amount was deposited in the registry of the court) under condition No. 9 of the policies which reads as follows: ‘‘Or if the Insured should die from Heart Disease, Tuberculosis, Chronic Bronchitis, Cancer, Bright’s Disease, Liver Trouble, Pellagra, or any chronic disease contracted within twelve months from date of policy, only one-half the sum otherwise provided for under this policy will be payable.’’ The record shows that on the trial of the case counsel for the plaintiff offered in evidence the two insurance policies making them P-1 and P-2, and rested his case. The defendant, without offering any evidence whatsoever, closed its case. There was judgment as prayed for, and defendant has appealed. There can be no doubt that the plaintiff made out a prima facie case in view of the defendant’s admissions. In support of the special defense that the deceased had died of tuberculosis contracted within one year from the date of the policies, and that, therefore, only one-half of the value of the policies was due, the defendant relies upon a printed form entitled ‘‘Claimant’s Statement,” the blank portions of which are filled in in ink and which purports to have been signed by Lillie England subsequent to her death and burial. . The record shows that this document was never introduced in evidence by counsel for either party, and its presence in the record is only explained by the statement of counsel for the defendant in his argument at the bar that the document was bradded to one of the policies at the time it was offered in evidence. Counsel for the plaintiff denied that he had offered the document in evidence and stated that he had no recollection of it being bradded to one of the policies (P-1) at the time that it was offered. He is borne out in this statement by the stenographic report which shows that only the policy was introduced in evidence, no reference being made whatever to this document. No agreement either verbal or in writing has been entered into by counsel that would permit consideration of this paper as evidence by this court; consequently, under long-established jurisprudence, its mere presence in the record is not sufficient to make it a part of the transcript. O. K. Realty Co. v. Juliani, 1 La. App. 1; Jacobs Bros. v. Bel, 1 La. App. 14; Wilkin-Hale State Bank v. Tucker, 148 La. 980, 88 So. 239; Bilich v. Mathe, 149 La. 484, 89 So. 628; Broussard v. Rosenblum, 5 La. App. 249. It would logically follow that the special defense must fail in the absence of evidence to support it. But, even if the document had been offered in evidence, we are of the opinion that it has no probative value. We first note that the document purports to have been signed by Lillie England, the insured, subsequent to [99] her death. It states the cause of her death to be “acute pulmonary,” that the deceased quit work “1 year”; and that the deceased first consulted a physician concerning her last illness “1 year.” The record shows that defendant caused a subposna duces tecum to be issued calling for the Orleans Anti-Tuberculosis League clinical report concerning Lillie England, and also summoned as witnesses Dr. G. S. Brown, medical director of the clinic, and Drs. J. A. Barnes and T. G. Wiltz, but the clinical report was not introduced, and the doctors did not testify. There being no evidence in the record to establish the special defense, it must fail. For the reasons assigned, the judgment is affirmed.