A reargument was granted upon two questions:
"(a) Did the court err when charging that the jury should not consider the recitals in the proofs of death from the attending physician of what others had related to him as evidence of the facts told?
"(b) Did the court err in excluding statements made by relatives of the insured, other than plaintiff, to the attending physician, when requesting him to furnish proof of death regarding symptoms of epilepsy manifested by the insured previous to the issuance of the policy?"
The answers depend upon the situation of the case when the trial court was called to act. Defendant admitted the issuance of the policy, the death, and receipt of due proofs of death, but denied liability upon the alleged ground of fraudulent misrepresentations made by the insured in his application for the policy. This placed the burden of proof upon defendant; and it undertook to prove that the insured had epilepsy when the policy issued and died from suffocation during an epileptic attack, by first calling plaintiff for cross-examination so as to lay a foundation for the introduction of the proofs of death, wherein were hearsay recitals that the insured had previously suffered from epileptic attacks. Her testimony disclosed that while she as beneficiary had signed the proofs of death, *Page 216 she had not asked Dr. Pearsall as attending physician to make the statement which was a part thereof, had authorized no one to relate anything to the doctor concerning the health of the insured or the cause of death, had never seen the statement, and knew nothing of its contents. She further testified that to her knowledge the insured never exhibited any symptoms of epilepsy, that he always had been at home and slept with either a younger or an older brother. Thereupon the proofs of death were offered by defendant as admissions by plaintiff of the facts therein contained.
Plaintiff's attorney objected to these two recitals in Dr. Pearsall's statement with respect to the death of the insured:
"Is said to have had epileptic attacks previously," and
"Yes. Relatives state that he had epileptic attacks in sleep previously,"
for the reason that they were hearsay and not evidence of the fact that he had had them. The court received the proofs of death, including the hearsay recitals of the doctor, but remarked:
"I do not think it is admissible for all purposes. There are statements in there clearly not within his [Dr. Pearsall's] knowledge. I do not think they ought to be received as proof of the facts."
Defendant's attorney responded:
"Well, that will present itself possibly a little later, and I think we would like to call the court's attention to some things in regard to that in the shape of proof."
Proof was presented as defendant saw fit bearing upon the alleged misrepresentations of the insured, his consultation with Dr. Hamilton, the swimming pool incident, his state of health, the circumstances of his death, the autopsy, and the opinions of the medical experts as to the cause of death. In rebuttal plaintiff called Dr. Arnold, her son-in-law, who had taken the proofs of death to Dr. Pearsall for his statement. Dr. Arnold testified he had had no knowledge that the insured was other than in good health, but admitted that the insured had had some trouble with his teachers in school and had consulted Dr. Hamilton. Dr. Arnold did not claim to have had any authority to speak for plaintiff or *Page 217 to relate to Dr. Pearsall what anyone had said concerning the condition of the insured's health.
With the record in this shape we are convinced that the trial court did not err when charging the jury that the hearsay recitals of Dr. Pearsall above quoted should not be considered as proof of the existence of the facts related. As stated in the opinion, the authorities are in harmony that the proofs of death furnished by the beneficiary pursuant to the conditions of an insurance policy may be offered in evidence by the insurer in an action on the policy as an admission against the beneficiary of the existence of facts therein stated. But in most jurisdictions it is now equally well settled that the beneficiary is not concluded by such statements. It may be shown that they were not true or that they were made under misapprehension and hence not to be considered as admissions. If that be so, it should logically follow that when it is shown that the beneficiary had not procured the hearsay statement, had not authorized anyone to procure it, had not seen it, and had had no knowledge of the existence of any of the facts so stated, such recitals should not be considered as admissions by the beneficiary or as prima facie proof of the existence of the facts related. It may be conceded that the attending physician's statement of the cause of death need not be based on his own observation. It may rest in part on the history of the case as learned from the deceased or others. But what he has been told by others, even if contained in his statement, should not be used as admissions against the beneficiary when clearly shown to have been inserted without the knowledge of the beneficiary and delivered to the insurer without having been seen by the beneficiary; nor should such hearsay so inserted without the knowledge or approval of the beneficiary be considered as proof of the existence of that which was related.
In this case, with the report of Dr. Pearsall in its hands and plaintiff's denial in the reply of the misrepresentation as to health, no relative or other person was called by defendant to prove any previous epileptic or epileptiform attacks, unless the swimming *Page 218 pool incident was such a one. If a brother of the insured accompanied Dr. Arnold when Dr. Pearsall's statement was procured, defendant did not call him as a witness nor offer to show that he was the one who told Dr. Pearsall of previous epileptic attacks. Plaintiff did call Dr. Arnold in rebuttal, and that gave defendant full opportunity to bring before the jury the discussion of the case between the two doctors, and the introduction in evidence of a written opinion of Dr. Arnold about that time given to Dr. Pearsall wherein, among other causes of death, Dr. Arnold stated it might be due to an epileptiform seizure, or Jacksonian epilepsy, but which was eliminated as a cause of death by the disclosure of the autopsy performed several months thereafter. The circumstances herein above referred to indicate rather clearly, it seems to us, that on no theory should the hearsay recitals be considered by the jury as admissions by plaintiff that the insured had had previous attacks of epilepsy, nor should such recitals be taken as prima facie proof that he had suffered such attacks.
As we read the new cases cited by appellant in its brief on the rehearing, they are not opposed to the result we reach. Where a statute makes a coroner's certificate prima facie evidence of certain facts it is properly receivable. Bromberg v. North Am. L. Ins. Co. 192 Mich. 143, 145, 158 N.W. 141, 142. In that case, it is true, the certificate was not obtained by the beneficiary but by his son, who sent it to the insurer as part of the proofs of death. Apparently the answer there did not admit due proofs of death, for the opinion says:
"It [coroner's certificate] was a part of the proofs of death forwarded to the defendant in pursuance of the terms of the contract, and the beneficiary relied upon it to satisfy a condition precedent to bringing suit."
It is also to be noted that the certificate did not contain hearsay recitals. The deputy coroner called to view the insured certified the cause of death was "a gunshot wound in the head, self-inflicted while temporarily insane." Jensen v. Continental L. Ins. Co. (C.C.A.) 28 F.2d 545, is also where a certificate was by statute *Page 219 prima facie evidence. Gits v. New York L. Ins. Co. (C.C.A.)32 F.2d 7, was a decision in favor of plaintiff, even though newspaper clippings accompanying the proof of death were considered admissible. In Cotton States L. Ins. Co. v. Crozier,216 Ala. 537, 113 So. 615; National L. A. Ins. Co. v. Puckett, 217 Ala. 110, 115 So. 12, the statements of the attending physicians were upon their own knowledge and did not contain hearsay recitals. Dickey v. Supreme Tribe Ben Hur,218 Mo. App. 281, 269 S.W. 633, is where the beneficiary stated in the proof of death that the insured committed suicide, and so far as that decision goes it favors this respondent. Rudolph v. John Hancock M. L. Ins. Co. 251 N.Y. 208, 167 N.E. 223, was not a case of hearsay recitals, and moreover the beneficiary there had heard the certificate read and had presented it as part of the proofs of death. Leonard v. John Hancock M. L. Ins. Co.76 Misc. 529, 135 N.Y.S. 564, is not in point, for the beneficiary knew what the certificate contained when it was presented to the insurer, and the contents were not hearsay. Cirrincioni v. Metropolitan L. Ins. Co. 223 App. Div. 461,228 N Y S. 354, was not a case involving hearsay recitals, and the policy itself contained provisions that the proofs of death could be used against the beneficiary.
As to the second question reargued, we are of opinion that the record does not show any error in the rulings of the court. Dr. Pearsall was called by defendant and was permitted to testify that when called to resuscitate the insured he was aided in forming an opinion as to the cause of death by what was told him, but when asked what Dr. Raihala, who had also arrived, and a brother of the insured, said, objection was made as calling for hearsay and sustained, it appearing that plaintiff was not present. The other occasion when Dr. Pearsall had any talk with a relative concerning the insured was when Dr. Arnold obtained the statement of Dr. Pearsall as attending physician; and after the witness was permitted to state that he and Dr. Arnold discussed the personal history of the deceased as an aid to the giving of an opinion and filling out the certificate, the objection was sustained to the question: *Page 220 "What did he tell you?" The court said there was no evidence that plaintiff had sent him to give information. The ruling was right. Moreover, Dr. Arnold afterwards took the stand for plaintiff and was cross-examined at length, and his written opinion as to the cause of death was received in evidence; but no foundation was laid for any impeachment of his testimony, nor was any effort made to show that he told Dr. Pearsall any different story from what he told in court.
Whoever a plaintiff may have sent to get the statement from the attending physician, it cannot have been in the contemplation of the parties interested in an insurance policy that the statement from the physician is to include what outsiders may have said, especially when, as here, it is proved that plaintiff never saw, heard of, or approved such hearsay. Had this not clearly appeared, the assumption would obtain that Dr. Arnold was plaintiff's agent in procuring Dr. Pearsall's statement and was authorized to say and do what would be reasonably necessary to procure such a statement as called for by this blank form of proofs furnished by defendant. The blanks can scarcely be said to call for such hearsay recitals as were here inserted.
Appellant cites Thornell v. Missouri State L. Ins. Co. (Tex.Civ.App.) 229 S.W. 653, affirmed by commission of appeals in249 S.W. 203, on the proposition that Dr. Arnold was authorized to procure Dr. Pearsall's statement and that the statement was admissible as evidence of the facts contained therein. But we submit that the facts there appearing when the trial court ruled are not at all similar to those under which the court acted in the case at bar.
It is perhaps not out of the way to say that the hearsay recitals do not show a defense. They do not fix the time of the previous epileptic or epileptiform attacks. If these occurred after the policy issued they have no bearing. There is no medical evidence as to how or when epilepsy starts or develops. For aught appearing in this record, it may come upon a person unexpectedly at any period of life. There is nothing to indicate that if there has been one attack there must have been a previous one. If the insured was not afflicted with any form of epilepsy when his application for the *Page 221 policy was presented and accepted, there should be a recovery even though death was caused by epilepsy.
The decision heretofore rendered is adhered to, and the order remains affirmed.