Opinion
No. 27745.
May 9, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, JAMES E. McLAUGHLIN, J.
Claude K. Rowland, St. Louis, Harry Gershenson, St. Louis, for appellant.
Jesse E. Bishop, St. Louis, for respondent.
This suit was brought by respondent, hereinafter referred to as plaintiff, against American Life and Accident Insurance Company, hereinafter referred to as defendant, to recover a death benefit provided in a policy of insurance issued by defendant on the life of William Blanke, deceased.
A trial before the Circuit Court of the City of St. Louis without a jury resulted in a finding and judgment in favor of plaintiff and against defendant in the sum of $303 and costs. After an unavailing motion for a new trial defendant appealed. The transcript on appeal was not filed in this court until August 25, 1949.
The cause was begun in a Justice of the Peace Court of the City of St. Louis on March 20, 1944, where the Justice found in favor of defendant. Plaintiff appealed to the Circuit Court where, on December 17, 1948, more than four years after the trial in the Justice Court, the finding and judgment in favor of plaintiff heretofore mentioned were rendered. Defendant filed no answer either in the Justice Court or in the Circuit Court. It was agreed by the parties at the trial in the Circuit Court that the insured died on November 12, 1940, and that the death benefit provided in the policy had not been paid; that the ground for refusal of payment by defendant was, as stated in a letter by defendant to plaintiff's counsel, that the death claim proof submitted showed that the illness causing death had its beginning prior to the issuance of the policy and "these facts were withheld in the original application"; that another ground of said refusal by defendant to pay was the insured's statement in the application that he was in good health.
Plaintiff introduced in evidence, as his Exhibit A, the policy of insurance sued on. It appears from the evidence that the application for the policy, defendant's Exhibit 1, was a clipping from a newspaper which came by mail to defendant. It was signed by William Blanke. Upon receipt of said application and the payment of the monthly premium of $1 the policy was issued and mailed to said William Blanke by defendant. The policy was dated February 11, 1939. The application contained the following statement made by the applicant, William Blanke: "Treated for any serious illness or injury — None. I hereby certify that I am in good health, have no physical or mental impairments, and that the information furnished here is correct."
Proof of death submitted by plaintiff to defendant signed and sworn to as "Physician's Statement" on behalf of plaintiff by Dr. G. J. McDonald, 1515 Lafayette Avenue, St. Louis, Missouri, was introduced in evidence as Defendant's Exhibit 3. It showed that the insured died on November 12, 1940, at the City Hospital, St. Louis, Missouri, of "Papillary Carcinoma of Bladder," with contributory or secondary cause stated as "Pyelonephritis with Stones"; that the duration of the "Papillary Carcinoma of Bladder" was "Time in hospital." Said Exhibit 3 also stated that the duration of the "Pyelonephritis with Stones" was "About three years." The exhibit contained answers to questions showing that the deceased had been treated at the City Hospital on "4/9/38, 5/2/38, 9/29/38, 9/14/40, Carcinoma of Bladder and Pyelonephritis." A statement signed and sworn to by plaintiff on a form designated "Claimant's Statement" and submitted to defendant by plaintiff as part of the proof of death, was introduced as Defendant's Exhibit 2. It showed the cause of the insured's death as "Papollary Carcinoma of Bladder Pyelonephritis with stones." It also showed that the deceased had received treatment in the City Hospital in 1938.
The policy of insurance, Plaintiff's Exhibit A, contained the following provision on page 2 thereof:
"15. Limitation of Insurance. By the acceptance of this policy, it is expressly agreed, if, the Insured is not alive and is not in good health on the date hereof, or if before the date hereof the Insured has been rejected for insurance by this or any other company, order or association, or has, before the date hereof, been attended by a physician for any serious disease or complaint, or, before said date, has had any pulmonary disease, or chronic bronchitis or cancer, or disease of the heart, liver or kidneys, unless such rejection, medical attention or previous disease is specifically recited in the `Space for Endorsements' on page 4 in a waiver signed by the President or Secretary; * * * then, in any such case, the Company may declare this policy void, subject to the clause entitled `Incontestability,' and the liability of the Company in the case of any such declaration, or in the case of any claim under this policy, shall be limited to the return of the premiums paid on the policy, except in the case of fraud, in which case all premiums will be forfeited to the Company.
"It is expressly agreed that should the Insured die within three years from date of issue or date of reinstatement, as a result of heart disease, lung, liver or kidney trouble, Bright's disease, diabetes, cancer, insanity, arterio sclerosis, cerebral hemorrhage, apoplexy, ulcers of the stomach, pernicious anemia, tuberculosis or any chronic disease which has its beginning within one (1) year from date of issue or from date of reinstatement, the liability of the Company shall not exceed one-fifth (1/5) of the amount which otherwise would be payable under the terms of this policy."
At the close of plaintiff's case defendant made an oral motion to dismiss the action and at the close of the whole case also made a similar oral motion, and for a directed judgment in defendant's favor, on the ground that the documentary proof showed that at the time of the issuance of the policy and prior thereto William Blanke, insured, had been sick since May 1931, and that at said time he was suffering from one of the diseases which contributed to and caused his death. Defendant's motions were overruled.
Defendant introduced in evidence the records of the City Hospital of the City of St. Louis as defendant's Exhibit 5, and a record of the Jewish Hospital of the City of St. Louis, defendant's Exhibit 6, also marked "Defts. Ex. 4." The Jewish Hospital record showed a history of a series of illnesses of insured dating back to May 29 and May 30, 1931; that on said last named dates the insured was admitted to the Jewish Hospital where his condition was diagnosed as "Pyelonephritis, Bilateral"; that the insured was also in the Jewish Hospital in June 1932 for "Stricture of Urethra," and in the period July-August, 1932, operated on for right inguinal hernia; that on October 19, 1933, he was admitted to the same hospital, the record showing a diagnosis of "Left Inguinal Hernia"; that the insured was admitted to the same hospital April 11 to May 2, 1938, for a condition diagnosed as "Nephrolithiasis; Pyelonephritis." The record of the City Hospital showed that on May 13, 1938, insured's condition was diagnosed at that hospital as follows:
"(1) Renal Calculi — bilateral (2) Pyelonephritis — bilateral (3) Ptosis of left kidney (4) Kink in left ureter (5) Chronic ureteritis (6) Hypertrophy of prostate mild (7) Left ureteral calculus."
Defendant's evidence further showed that on May 27, 1938, the insured was operated on at the City Hospital and a part of his ninth rib was removed; that he was a patient in said City Hospital from May 1938 to September 1938, and that on September 11, 1938, he was sent home to return in one month for surgery; that he returned to the City Hospital on September 14, 1940, and received treatment for bladder and renal calculi, and that he then remained in the hospital until his death on November 12, 1940.
Dr. Jules Kopp, a practicing physician specializing in urology, testified for plaintiff that in 1940 he was on the staff of the City Hospital of the City of St. Louis. The doctor was shown a report of the City Hospital referring to William Blanke and asked if he performed a surgical operation on William Blanke on September 26, 1940. The doctor answered that he did perform such operation; that the operation was for "Papillary carcinoma of the bladder"; that in plain language said condition means "Cancer of the bladder." Referring to said City Hospital reports the doctor testified that on September 7, 1938, the right kidney of the insured was reported to be in good condition, and that the left one had impaired function caused by kidney stones; that on October 3, 1938, the left kidney was operated on and the kidney stones removed from said kidney; that the next entry of insured into the City Hospital was in September 1940, when it was first discovered that insured was suffering from a cancer of the bladder.
The doctor's attention was called to the City Hospital reports showing that William Blanke, the insured, died November 12, 1940, which was about a month and a half after the surgical operation the witness had performed on the insured, and he was asked if from the condition he found in the insured and from the hospital reports which he had read and from his general knowledge of urinary or urological cancers he could tell how long the cancerous condition had been present in the insured prior to his death. Defendant objected to such testimony, but the objection was overruled and the witness answered:
"A. We know from the record that it was not present at the cystoscopic examination — examination of the bladder in 1938. The first evidence we had of the cancer of the bladder was the admission at which time the cancer of the bladder was treated.
"Q. That was in September of 1940? A. Yes, and the cancer of the bladder usually terminates fatally in one to three years from the time of the onset of the symptoms. * * * The location of the cancer influences the time the patient will live and the type of cancer influences the time the patient will live * * * the papillary carcinoma spreads more rapidly than some of the others and a cancer of this type would usually terminate fatally in from six months to 18 months. The average for all cancers of the bladder is from one to three years."
Dr. Kopp further testified that Pyelonephritis is "an infection involving the kidney substance and the pelvis of the kidney"; that the carcinoma or cancer of the bladder was the primary cause of death of the insured Blanke because it was listed first in the death certificate; that when an illness terminates in death the death certificate usually mentions every abnormal condition of the person because the Bureau of Vital Statistics requests it; that any other abnormal condition or disease in the body would have been referred to as a contributing cause for the reason that any other secondary disease would aggravate the primary illness; that pyelonephritis is an infection that usually respondents to treatment and is not considered a fatal disease if only one kidney is involved; that "if both kidneys are involved, it naturally is much more serious than one." The doctor further stated that from the X-ray report of September 7, 1938, of the City Hospital "the patient had stones in both kidneys and from that we would be led to believe that he had pyelonephritis on both sides"; that the laboratory report would have to be looked at to see if the kidneys were infected, "but he did have stones on both sides so it is natural to assume that he had infection on both sides."
Dr. Kopp's attention was called to the said hospital X-ray report of September 7, 1938, and he was asked if that report showed a fairly normal right kidney of the insured. The doctor answered:
"From this X-ray report it appears that the right kidney was in good condition.
"Q. That was in September? A. September 7, 1938.
"Q. And that the left one had some infection in it, is that correct? A. The left kidney had impaired function at that time."
The doctor further testifying from the hospital reports stated that on October 3, 1938, the insured was operated on and stones were removed from the left kidney and the left kidney was drained.
Defendant requested the court to make a finding of facts which was presented to the court in writing embodying defendant's theory that the contract of insurance never went into effect because the insured was, at the time he made application for the insurance, and prior thereto, suffering from diseases that caused and contributed to cause his death and defendant had no knowledge of said facts. Defendant also requested the court to give a written declaration of law based on the same theory. The court refused both requests.
Defendant contends that the court erred in refusing to sustain its motion to dismiss plaintiff's cause of action and find for defendant. Defendant's arguments in support of its contention are based on two grounds: (a) that plaintiff's documentary admissions and statements in the proofs of death conclusively show that when the policy was issued the insured was suffering from carcinoma of the bladder and pyelonephritis with stones from which diseases he died, and (b) that the policy was never in effect by reason of the sound health provision.
Plaintiff contends that the question of whether the insured on the date of the issuance of the policy was suffering from a disease from which he died 21 months later is a question of fact on the record; that the burden was on defendant to prove such fact and that the testimony justifies the trial court's findings in favor of plaintiff on that question.
In pointing out the many illnesses and conditions from which the insured suffered, defendant fails to take into account the statute by which we must be governed in determining this case. Said statute provides: " No representation made in obtaining or securing a policy of insurance on the life or lives of any person or persons shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and if so contributed in any case, shall be a question for the jury." Section 5893 R.S.Mo. 1939, Mo.R.S.A. Section 5893. (Emphasis ours.)
By introducing the policy and by the stipulation acknowledged by defendant that the insured had died and that plaintiff was the named beneficiary and that defendant had refused to pay, plaintiff made a prima facie case. The burden was then on defendant to produce evidence showing not only what caused the insured's death but it was required to go further and show that at the time the policy was issued on February 11, 1939, the insured was suffering from the disease that caused or contributed to cause his death.
Whether the matter alleged to have been misrepresented by the insured actually contributed to cause his death was, under the statute, supra, and a long line of decisions of our courts, a question for the jury to decide. See Bruck v. John Hancock Mut. Life Ins. Co., 194 Mo.App. 529, 185 S.W. 753; Hicks v. Metropolitan Life Ins. Co., 196 Mo.App. 162, 190 S.W. 661; Bohannon v. Illinois Bankers Life Ass'n, 223 Mo.App. 877, 20 S.W.2d 950; Sappington v. Central Mut. Ins. Ass'n, 229 Mo.App. 222, 77 S.W.2d 140; Poignee v. John Hancock Mut. Life Ins. Co., Mo.App., 147 S.W.2d 677, and the numerous cases cited in the above mentioned cases.
It is true that the above cited cases did not involve policies issued on the stipulated premium plan such as the policy herein. Nevertheless said decisions are applicable because Section 5843 R.S.Mo. 1939, Mo. R.S.A. Section 5843, on which they were based, is substantially identical in language with Section 5893 R.S.Mo. 1939, Mo.R.S.A. which governs policies issued under the stipulated premium plan.
In the light of the statute, supra, much of the evidence introduced by defendant showing diseases other than those which contributed to cause the insured's death was immaterial. The precise question for us to determine in view of said statute is whether or not at the time the insured accepted the policy of insurance on February 11, 1939, he was then suffering from a disease or condition which actually contributed to cause his death. Evidence that the insured died of cancer of the bladder, by itself, constitutes no proof that the insured had that disease twenty-one months before his death when the policy was issued. We are of the opinion that defendant failed to produce sufficient evidence to warrant the court in finding as a matter of law that the insured was suffering from carcinoma of the bladder at the time the policy was issued.
It will be recalled that Dr. Kopp testified that it was in September 1940, long after the policy was issued, that the discovery was first made that the insured was suffering from cancer of the bladder and that said cancer was not present at the cystoscopic examination of the bladder in 1938.
Dr. Kopp further testified that cancer of the type which was the primary cause of the insured's death would usually terminate in death from six to eighteen months. None of Dr. Kopp's testimony was contradicted. Defendant presented no medical testimony whatsoever.
We hold that the court would not have been justified in rendering a judgment for defendant on the ground that the insured was suffering from cancer of the bladder when the policy was issued on February 11, 1939. So much for that phrase of the case.
We must now determine whether there was sufficient evidence to authorize the court to declare as a matter of law that the insured was suffering from the kidney disease "Pyelonephritis with Stones" on February 11, 1939, when the policy was issued. Defendant's Exhibit 3, the proof of death signed by Dr. McDonald, which was furnished by plaintiff, stated that the duration of the insured's disease of "Pyelonephritis with Stones" was "About three years." This evidence was not contradicted or explained by any other evidence or testimony in the case.
The evidence further showed that the insured had been admitted to the Jewish Hospital on May 29, 1931, where his condition was diagnosed as "Pyelonephritis, Bilateral" and that he was admitted to the same hospital for a period April 11 to May 2, 1938, at which time his condition was diagnosed as "Nephrolithiasis; Pyelonephritis." The City Hospital record showed that on May 13, 1938, insured's condition was diagnosed as "(1) Renal calculi — bilateral (2) Pyelonephritis — bilateral (3) Ptosis of left kidney (4) Kink in left ureter (5) Chronic ureteritis (6) Hypertrophy of prostate mild (7) Left ureteral calculus."
Dr. Kopp testified that pyelonephritis is an infection that usually responds to treatment and is not considered fatal if only one kidney is involved, but he also testified from the X-ray report of September 7, 1938, of the City Hospital that the insured "had stones in both kidneys and from that we would be led to believe he had pyelonephritis on both sides." Later in his examination, Dr. Kopp testified that it appeared from the same X-ray report that on September 7, 1938, the right kidney of the insured was in good condition and the left had some infection in it, and that on October 3, 1938, the insured was operated on and stones were removed from the left kidney and that the left kidney was drained.
Although there is no direct evidence that on the very day the policy was issued the insured was suffering from pyelonephritis, there is uncontradicted, positive evidence that in April and May 1938, as shown by the Jewish Hospital record, he was suffering from "Nephrolithiasis; Pyelonephritis," and that on May 13, 1938, only ten months before the policy was issued, one of the seven conditions from which he was then suffering was "Pyelonephritis — bilateral."
As we view this record, the only reasonable inference that can be drawn from the evidence showing the many times prior to the issuance of the policy that the insured suffered from attacks of pyelonephritis, is that he was never during that period completely free from that disease although from time to time it would become dormant. It was during an interim between attacks of that disease that the insured applied for the policy in suit. The evidence shows without dispute that the insured was suffering from Pyelonephritis in April and May 1938 at the Jewish Hospital and in September 1938 at the St. Louis City Hospital, the latter date being only about five months prior to the issuance of the policy in February 1939. It thus appears from positive, undisputed documentary evidence, a part of which plaintiff furnished to defendant in his proofs of death, that the insured suffered from pyelonephritis at various times over a period of years up to within five months of the issuance of the policy herein and that the last attack of that disease, after the policy was issued, finally contributed to cause his death.
Although we hold that the trial court correctly overruled defendant's various motions for dismissal and judgment in its favor, prior to final submission of the case, we find ourselves unable to agree with the ultimate decision of the court in rendering judgment for plaintiff. This case was tried by the court without a jury and under the New Civil Code, Section 114(d) Laws Mo. 1943, page 388, Mo.R.S.A. Section 847.114(d), it is our duty to review it upon both the law and the evidence as in suits of an equitable nature. This means that although we must give due regard to the opportunity of the trial court to judge of the credibility of the witnesses, it is nevertheless our duty to reach our own conclusions on the evidence and render such decision as we believe the trial court should have rendered. Botto v. James, Mo.Sup. 209 S.W.2d 256. We are of the opinion that the overwhelming weight of the evidence leads inescapably to the conclusion that the insured at the time the policy was issued to him was suffering from pyelonephritis, a kidney disease, which ultimately contributed to cause his death.
It thus appears that the insured gave false information concerning himself when he made application for the policy for he responded to the simple question in the application: "Treated for any serious illness or injury" by answering "None." He also certified on said application that: "I am in good health, have no physical or mental impairments * * *." The evidence shows that contrary to his above representations the insured had suffered at intervals for many years from a serious disease which finally contributed to cause his death. A fair construction of the question above set forth leads to the conclusion that it was clearly intended to elicit from the insured information as to whether he had been treated in the past for any serious illness or injury. It cannot reasonably be held to propound an inquiry as to whether he was at that time being treated for any such illness. In order to give the question the latter meaning, we would be required to add words at the beginning so as to make it read: "Are you now being treated" etc. We believe there is no room for such construction. The word "Treated" is in the past tense and necessarily refers to the past.
Plaintiff contends that the defense of misrepresentation is not available to defendant because of its failure to deposit the paid premiums in the registry of the court. He cites Section 5846 R.S.Mo. 1939, Mo.R.S.A. in support of this contention. Said statute has no bearing on this case. It is contained in Article 2 R.S.Mo. 1939, Mo. R.S.A. Article 2, which deals with life and accident insurance companies, whereas the policy involved herein is a stipulated premium plan policy which is governed exclusively by Article 4 R.S.Mo. 1939, Mo.R.S.A. Article 4. The last named Article contains no such requirement.
Plaintiff further contends that defendant is restricted in its defense of misrepresentation to that portion of the application attached or endorsed on the policy. Plaintiff cites the case of Hicks v. Metropolitan Life Ins. Co., 196 Mo.App. 162, 190 S.W. 661, in support of this contention. We believe the Hicks case, supra, has no application to the case at bar because in that case neither the application nor the substance of it was attached to or endorsed on the policy. In this case the substance of the application was endorsed on the policy. Furthermore, the application involved herein was received in evidence without any objection from plaintiff. We, therefore, rule this point against plaintiff.
Plaintiff contends that the case of Poignee v. John Hancock Mut. Life Ins. Co., Mo.App., 147 S.W.2d 677, is authority for holding that he is entitled to recover in the case at bar. We are unable to agree with plaintiff on this point. The facts in the Poignee case were entirely different from those in the case at bar. In the Poignee case the defendant therein contended that it was the duty of the court to "assume" as a matter of common knowledge that the disease which caused the insured's death, namely, diabetes is a progressively incurable disease and that the court should also take "judicial notice" of the action of insulin on the human system and that the purpose of giving insulin to a patient is to keep down the sugar content of the blood. There was no evidence, either medical or otherwise, to support such a contention and this court simply refused to assume or supply by judicial notice that element of the defendant's defense therein. We have no such situation in the case at bar.
On the overwhelming weight of the evidence and the terms of the policy, we hold that plaintiff is not entitled to recover. The judgment of the trial court is accordingly reversed.
ANDERSON, P. J., concurs in result only in separate opinion filed.
HUGHES, J., concurs.
In my opinion the court should have sustained defendant's motion to dismiss plaintiff's cause and to enter judgment in favor of defendant, which motion was offered at the close of the whole case. Defendant's Exhibit 3, a physician's statement signed by Dr. McDonald, which was furnished by plaintiff as a part of her proof of death, gave the duration of the disease which contributed to cause the insured's death, namely, "pyelonephritis with stones," as having existed for about three years. This evidence was not contradicted or explained by any other evidence or testimony in the case. Therefore, under the decision of Kirk v. Metropolitan Life Insurance Co., 336 Mo. 765, 81 S.W.2d 333, plaintiff, as a matter of law, was not entitled to recover. I therefore concur only in the result reached by the majority opinion.