Opinion
No. 27698.
January 17, 1950.
APPEAL FROM THE CIRCUIT COURT, JEFFERSON COUNTY, EDWARD T. EVERSOLE, J.
W. Dwight Schubel, Hillsboro, Jones, Hocker, Gladney Grand, St. Louis, James C. Jones, III, St. Louis, for appellant.
Ennis Saunders, Festus, for respondent.
On July 16, 1945, the defendant, Missouri Insurance Company, issued to Theresa Louise Peebles, an industrial policy in which her husband, the plaintiff, was the named beneficiary. Five days later, to wit, on July 21, 1945, Theresa Louise Peebles, the insured, died.
The defendant denied liability and this suit was instituted. The defense was based on two grounds: first, false and fraudulent representations contained in the application; and, second, a good health provision contained in the policy.
At the trial of the case the defendant produced Exhibit 2 which purported to be the application, but defendant failed to prove its execution, and plaintiff's objection to it being received in evidence was sustained. Hence, the application never reached the jury and the defense of false and fraudulent representations passed out of the case, and no error being assigned by appellant because of the refusal of the court to admit the application in evidence, it is not before us.
The good health clause in the policy is as follows: "This Policy shall not take effect if the Insured die before the date hereof, or if on such date the Insured be not in good health, but in either event the premiums paid hereon, if any, shall be returned."
On the trial of the cause the following questions and answers, which are pertinent to the issue involved, appear in plaintiff's testimony, viz:
"Q. Had your wife ever had asthma? A. I don't know.
"Q. You know, as a matter of fact, she was in St. John's Hospital in St. Louis in 1940? A. For a gallstone operation.
"Q. Don't you know, at that time, the hospital records show she had asthma? A. No. I don't.
"Q. You say she did not have asthma at that time? A. If she did, I didn't know anything about it.
"Q. Had your wife ever been treated for asthma? A. The doctors were treating her for gallstones a long time.
"Q. Was she ever treated for asthma after she came back from the hospital? A. I don't know."
The documentary evidence produced by the defendant was the proof of death submitted to it by plaintiff under date of August 2, 1945, and consisted of two parts, both being labeled "Proof of Death," and one page labeled "Claimant's Statement," and the other labeled "Physician's Statement." The claimant's statement, which was signed and sworn to by plaintiff, stated that the insured died on July 21, 1945; that the cause of death was chronic asthma, and the duration of her last illness was two years. The "Physician's Statement," which was signed and sworn to by Dr. B. Bolgar, stated that the cause of insured's death was chronic myocarditis and bronchial asthma; that the duration from personal knowledge was two years, two months and two days, and the following questions and answers:
"9. How long had Deceased been ill when you were called to attend in last illness?" "Had severe attacks of bronchial asthma off and on." "11. Was Deceased afflicted with any infirmity, deformity or Chronic disease?" "Bronchial asthma." "20. Please state the disease or diseases for which you attended deceased and dates of attendance other than asked in Questions 6, 7 and 8." "Bronchial asthma off and on for the last 2 years."
Dr. Bolgar was called as a witness by the defendant and testified that the insured was first treated by him in 1942; that he treated her eighteen or twenty times, and that she was suffering from bronchial asthma; that she would have difficulty in breathing, and would jerk and be more or less blue around her face and lips due to a lack of oxygen in her blood; that the last time he treated her was in December, 1944; that his treatment was a hypodermic injection of adrenalin; that he was called to the insured's home at the time of her death; that she lived about two minutes after he arrived; that the chief cause of her death was a heart block; that asthma was a contributing factor to the heart block; that chronic myocarditis could cause a heart block.
The doctor further testified that the "Physician's Statement" which is a part of the proof of death, and in which it is stated that the cause of insured's death was chronic myocarditis and bronchial asthma, duration two years, two months and two days, was executed by him, and that the insured had had severe attacks of bronchial asthma off and on for the last two years.
On cross-examination the doctor denied that he told any one that the insured had died from a cerebral hemorrhage.
Dr. Bolgar further testified that when he examined the insured in December, 1944, she was suffering from a slight heart condition, and he thought she had myocarditis.
In rebuttal the insured's daughter and a neighbor lady who were present when the insured died both testified that immediately after the insured's death the neighbor lady inquired of Dr. Bolgar as to the cause of the insured's death and that he said it was cerebral hemorrhage, and when asked if it was a heart attack he said "No, cerebral hemorrhage."
The sole point relied upon by appellant is that its motion for a directed verdict at the close of all the evidence should have been sustained, for the reason that the admission of plaintiff in the proof of death that the cause of death of the insured was bronchial asthma, and the duration of her last illness was two years, is binding on plaintiff, and because of the good health provision the policy was never effective.
It is true that plaintiff established a prima facie case by showing the issuance of the policy, the payment of the premium, the death of the insured, and that he is the named beneficiary. But such prima facie case was entirely destroyed when defendant produced in evidence the written proof of death, wherein plaintiff stated the cause of death to have been bronchial asthma, unless such admission of plaintiff was explained or contradicted by further evidence. The law to that effect is settled by the Supreme Court in the case of Kirk v. Metropolitan Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333, and by this court in the case of Fields v. Metropolitan Life Ins. Co., Mo.App., 119 S.W.2d 463, and the case of Johnson v. Missouri Ins. Co., Mo.App., 46 S.W.2d 959, and by several other cases.
Plaintiff seeks to escape the binding force of the admission in his proof of death on the theory that the physician's statement, which is a part of the proof of death, states the cause of death to have been bronchial asthma and chronic myocarditis, and that the oral testimony shows that the physician told a neighbor, who was present when the insured died, that death was caused by a cerebral hemorrhage. The physician denied that he made such statement, but plaintiff contends that this oral evidence was an explanation or contradiction of the physician's statement in the proof of death. And true it might have been a contradiction of the statement in the proof of death that one of the diseases which caused the death was myocarditis. But it would in no manner be a contradiction of plaintiff's statement or of the physician's statement in the proof of death that the insured had bronchial asthma for two years. The physician's written statement named bronchial asthma as one of the causes of the insured's death. If bronchial asthma, which existed for two years according to the statement in the proof of death of both the plaintiff and the physician, either caused or contributed to cause the insured's death five days after the issuance of the policy, by reason of the good health clause the insurance never became effective. This was expressly held in the Kirk case and in the Fields and Johnson cases, and other cases. The issue was not that of false representations, but was as to the fact of whether the insured was in good health when the policy was issued. Lipel v. General American Life Ins. Co., Mo.App., 192 S.W.2d 871. If she had bronchial asthma when the policy was issued, which afterwards caused or contributed to cause her death, she was not in good health when the policy was issued.
The plaintiff's oral testimony was that he did not know whether or not the insured had asthma or had been treated for asthma before July 16, 1945, the date of the issuance of the policy, and now he claims that such lack of knowledge on his part is sufficient to authorize a finding by the jury that his wife did not have bronchial asthma, notwithstanding his statement to the contrary in the proof of death. The same claim was made in the Kirk case, but the Supreme Court said [336 Mo. 765, 81 S.W.2d 341], "The testimony of the plaintiff, husband of the deceased, shows only that he did not know that his wife had tuberculosis until he took her to Mayo's, which was approximately a month after the date of the policies, and that so far as he knew she had not previously been treated for that disease." And as to the effect of such testimony by the husband and other witnesses the Supreme Court said, "In the instant case the testimony of plaintiff and his other witnesses is not inconsistent with or contradictory of the admissions in the proofs of death that the insured had tuberculosis at the time the policies were issued."
In the case of Burgess v. Pan-American Life Ins. Co., Mo.Sup., 230 S.W. 315, cited by the respondent, the insured died from cirrhosis of the liver, but unlike this case, the testimony was highly controversial as to how long the insured had suffered from that disease. The same may be said as to the testimony in the case of Cope v. Central States Life Ins. Co., Mo.App., 56 S.W.2d 602. But as to the rule of law that plaintiff is bound by the unexplained and uncontradicted statements in the proofs of death, both cases are in accord with the Kirk case.
The case of Scott v. Missouri Ins. Co., Mo.App., 222 S.W.2d 549, is not an authority, it having been transferred to the Supreme Court. Not only so but the ruling of this court in that case was based on the application wherein the applicant declared that "any misrepresentation willfully made" would render the policy void. There is no such question in this case.
In this case the contract between the insured and the insurer was not to take effect if on the date of the policy the insured was not in good health. Had the insurer known that the insured was affected with a disease that had lasted for over two years, and probably would, as it did, cause or contribute to cause the death of the insured, it doubtless would not have issued the policy.
Ordered that the judgment of the circuit court be reversed.
ANDERSON, P. J., and McCULLEN, J., concur.