Opinion
No. 27780.
June 20, 1950. Motion for Rehearing or to Transfer to Supreme Court Denied July 18, 1950.
APPEAL FROM THE CIRCUIT COURT OF CITY OF ST. LOUIS, EUGENE J. SARTORIUS, J.
G. W. Marsalek, St. Louis, Moser, Marsalek, Carpenter, Cleary Carter, St. Louis, for appellant.
Herman Willer, St. Louis, Susman, Mayer Willer, St. Louis, for respondent.
This is a suit on a policy of accident and health insurance brought by Dr. Adolph M. Frank, as plaintiff, against the United Benefit Life Insurance Company, as defendant. The case was originally filed in the Magistrate Court. A trial in the Magistrate Court resulted in a judgment for plaintiff. Thereafter, an appeal was perfected to the Circuit Court where the cause was tried by the court without a jury. The trial in the Circuit Court resulted in a finding and judgment for plaintiff for $510 benefits under the policy, $38.64 interest, $51 for vexatious refusal to pay, and $200 as attorneys' fees, an aggregate sum of $799.64. From this judgment, defendant has appealed.
The only formal pleading in the case is plaintiff's petition. It is alleged, in substance, that on or about February 3, 1947, in consideration for the payment of a stated premium, the defendant issued to plaintiff a policy of accident and health insurance; that, among other provisions, said policy provided for payments in the event of confining illness at the rate of $100 per month, plus additional benefits if the assured were hospitalized; that on April 29, 1947, plaintiff contracted a disease or illness and was hospitalized from that date until June 1, 1947, and thereafter was confined at home until September 15, 1947; that plaintiff had performed all conditions precedent to recovery, had made necessary demand, but defendant had refused to pay, and that said refusal to pay was vexatious.
The policy sued on provides for specific benefits in event of disability caused by accident or sickness, except that disability originating before six months from the inception of the contract and caused by tuberculosis or "heart trouble" is not covered. Disability beginning more than six months after the policy date is covered, regardless of the cause.
The policy was issued to plaintiff on February 3, 1947. Plaintiff is a physician of thirty-five years' experience.
On April 29, 1947, plaintiff awoke about 4:00 a. m. suffering from severe pain in his chest. At about 7:00 o'clock that same morning plaintiff called Dr. Robert Nussbaum and later was taken to the Lutheran Hospital. Upon arrival at the hospital he sustained a severe sweat and continued pain in the chest. Dr. Frank and Dr. Nussbaum both testified that plaintiff's illness was caused by a coronary occlusion. Plaintiff remained in the hospital until about the first day of June, 1947. He received sedatives on his first day or two in the hospital and after that only bed rest, without further medication. The bed rest was to allow the blood clot to become fixed and thus prevent it from breaking off; also to allow the heart damage, if any, to heal, and to permit establishment of collateral circulation.
After leaving the hospital on June 1, 1947, plaintiff remained at home until June 29, and then went to a resort at Coronada, California, where he remained for five weeks. While at the Coronada resort plaintiff was continuously confined to his hotel and the beach, except for rides in the evening. From California he went to Livingston, Montana, and visited his brother and sister from August 5th to September 1st. He was not confined during that period, but transacted no business. On September 15, 1947, plaintiff returned to his practice, but did not make house calls.
Dr. Frank was given morphine to relieve his pain, but was not given digitalis or quinidine, drugs often administered in instances of heart failure; nor was he given drugs to cause copious urination, a practice employed when the heart is failing. Plaintiff testified that he had no sign of heart failure. He was placed under an oxygen tent for forty-eight hours, the purpose being to get an increased supply of oxygen through the arteries that were still open and thus preserve as much of the heart muscle as possible. There was a lowering of the blood pressure which Dr. Nussbaum stated may or may not be significant in such cases, and which might have been due to the administration of morphine and bed rest.
A medical report signed by Dr. Nussbaum and furnished by insured to another health insurer was introduced in evidence. In said report Dr. Nussbaum stated: "My physical findings were cardiac shock; weak, rapid pulse; distant heart sounds; electrocardiogram revealed acute coronary occlusion." Dr. Nussbaum testified, however, that he had not made such findings, and did not dictate those words in the report before he signed it; that someone else put those words in the report; that he did not know who put them in the report, but that his secretary sometimes uses inapplicable words.
Dr. Frank testified:
"Q. * * * if the heart sounds change, and the blood pressure falls, and it is accompanied with intense pain, such as you had, and a sweat, is that because the heart has been affected? A. Only if you find changes in the heart sounds, not the sweating.
"Q. If you find changes in the heart sound, then the heart is affected? A. That is right; that is definite."
Dr. Frank further testified that when he arrived at the hospital he had a very profuse sweat, which was not a symptom of a heart condition, but a symptom of coronary occlusion, or shock.
In the medical report signed by Dr. Nussbaum, above referred to, appears the following:
"13. Please state result of your examination of Heart — There have been no abnormal physical findings at any time of the present illness except for fall of blood pressure to 130/78 and signs of peripheral vascular collapse which lasted only for the first day. Since that time blood pressure has remained at 150/90."
Dr. Nussbaum testified that a peripheral vascular collapse, as occurred in Dr. Frank's case, is nature's way of removing blood pressure and circulation from the involved area of the heart by causing a dilation of the blood vessels of the skin so that blood may be drained away from the heart. He stated that when this happens a sweating occurs, the same as happens in any type of shock. He further stated that when a coronary occlusion causes a sudden collapse of the peripheral vessels, like Dr. Frank had, they usually originate in one of the main stems of the coronary artery, before it reaches the terminal branch. He further testified that if one of the main stems is closed off, a good portion of the heart is deprived of blood and the heart loses its tone and part of its function.
Dr. Frank testified that there are two coronary arteries, an anterior branch and a posterior branch; that they do not arise out of the heart; that the blood that enters the coronary artery comes from the lung, then goes into the coronary vessels and then into circulation; that the coronary artery does not feed any other organ of the body; that the artery divides into small branches, and each of these branches feed part of the heart. He further testified:
"Q. Does this coronary artery ever lose contact with the surface of the heart? A. They are imbedded in the heart muscle.
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"The coronary vessel, as I understand, is imbedded in the heart muscle * * * you will have to open up the heart to see the vessels.
"Q. In other words, they are underneath, inside the heart wall? A. That is right.
"Q. They are imbedded in the heart wall? A. That is right."
Dr. Robert Nussbaum testified: "the heart has four structures, of which the coronary circulation is one.
"Q. It is a part of the heart? A. It is, and it is not. They arise from the aorta; the blood flowing in these blood vessels, the blood is carried through the arterial system, and this has no direct relation to the heart itself.
"Q. Let me put it this way. I see certain veins in my hand, and my wrist * * * systemically that is part of the arterial, or the complete blood circulation system? A. Yes.
"Q. But to me, it is a part of my hand. I hold it out, and there it is in my hand, to me a part of the hand. A. Correct.
"Q. Now, that is the same way as the coronary artery, systemically they may be the circulatory system, but organically these are part of the heart; isn't that right? A. I would say so.
"Q. They are incorporated, in other words, in the body of the heart? A. Correct. * * * I think I can clarify that a little by stating that the coronary arteries are definitely not a part of the heart, as they originate from the artery from which they arise, which is the aorta, and along their course they dip into the body of the heart.
"Q. And then * * * structurally they are part of the heart? A. Their terminal branches are incorporated into the heart."
Dr. Martin Davis, a witness for the defendant, testified:
"There are two coronary arteries, the right and the left. The left coronary artery comes down the front of the heart, between the two chambers of the heart, and goes off in many branches as it goes down and becomes imbedded, gradually becomes imbedded in the substance of the heart. The right coronary goes around the back of the heart, and goes down between the two ventricles and supplies branches to the back of the heart and to the wall between the two chambers. * * * they are part of the vascular system * * * the vascular system includes the blood vessels of the human body, including those of the heart, some people might call it the cardio-vascular system; the heart is really a specialized muscular portion of the system to act as a pump.
"Q. How about structurally? What are the coronary arteries, are they part of any particular structure of the body? A. Yes, they are a part of the heart."
The physiology of a coronary occlusion was described by the three physicians who testified in the case. There was no material difference in their testimony. A coronary artery becomes clogged with a blood clot, shutting off part of the blood supply to the heart muscle. When a clot forms and stops up blood passage through the artery the portion of the heart muscle normally supplied by that artery undergoes a necrosis, is degenerated and absorbed, and is sometimes replaced by scar tissue. Where a part of the heart is affected there is a lowering of the blood pressure. Dr. Frank testified that he did not think the coronary occlusion in his case involved enough of his heart to impair its efficiency and affect circulation generally; that his blood pressure fell very little; that he thought the reading was 138/140; that if his attending physician said the reading was 130/78, it was after taking morphine; and that his blood pressure stayed above 130 most of the time.
Dr. Frank testified: "If you had much myocardial damage, the absorption is done by connective tissue replacing the blood clot. * * * I think my electrocardiogram showed some slight myocardiac change."
Dr. Nussbaum testified that Dr. Frank has an elevated blood count, and stated that the increase in the white blood count verified the fact that Dr. Frank was having a sudden change either in his arterial system or his heart. Dr. Nussbaum further testified:
"Q. But in most of these cases where they have such a condition there is a change in the tissues of the heart? A. I would say so.
"Q. And there is that possibility in this case, because in the majority of these cases there is a change? A. Yes, I would say so. As a matter of fact, we admitted to ourselves at the time that he had a heart damage as a result of his coronary occlusion, and we felt very strongly that it was due, the heart involvement was due to the coronary occlusion and to nothing else."
Dr. Frank testified that coronary occlusion is a disease of the arteries, and that his disability was caused by coronary occlusion and not by heart trouble; that it is possible to have a coronary occlusion without having a heart involvement; that his condition at the present time, so far as the functioning of his heart is concerned, is normal. He further testified:
"Q. Is the coronary artery a part of the heart? A. It is a vessel that feeds the heart muscle. There is no difference in a man having a blood clot on his brain. He would not necessarily have a brain disease, because if the blood clot was absorbed, there would be no more brain involvement.
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"Q. And it is also possible, is it not, that in a coronary occlusion case that the heart may be involved? That is, that a part of the heart may be affected? A. Oh, it can kill you, depending upon the amount of involvement. * * * But there are many cases of coronary occlusion without any heart involvement at all.
"Q. And can you have a heart condition without any coronary occlusion, or involvement? A. That is right.
"Q. In other words, where we have a coronary occlusion, we have a disease of the coronary artery? A. Yes, sir; just the same as any other part of your body. It is just the same thing as your hair getting gray. Just because your hair gets gray, that does not give you heart disease.
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"Q. In your particular case, has there been a change in the heart, anatomically speaking? A. Well, I might have had somewhat of a blood clot, and I might have some scar tissue in the heart muscle, but so far as the heart functioning, it is normal.
"Q. And that would be just a temporary condition? A. That is right.
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"Q. These scar tissues that you mention, which affect the heart anatomically, that is the structure of the heart, are they frequently due to other causes? A. They can be due to anything that affects the heart muscle, and sometimes that scar tissue makes your heart muscle stronger than it was originally. If it does not fill in, it of course weakens it. If the scar tissue fills in, your heart muscle is stronger than it was originally."
Dr. Nussbaum testified that in his opinion one can have a coronary occlusion without having heart trouble or heart disease; that it often happens that an occlusion may occur in an artery other than the coronary artery, which causes the same symptoms as a coronary occlusion except that the pain is located at the site of the occlusion. He further testified:
"Q. Why did you order Dr. Frank to remain in bed rest for six weeks? A. For several reasons. Primarily to allow the blood clot in his artery to organize or become fixed, so it would not break up and be carried to some other part of his body, and to allow whatever damage he might have had in his heart to heal before putting an undue strain on it. But the primary medication and treatment was directed towards the arterial occlusion.
"Q. One purpose of the bed rest, however, is to allow a renewed source of blood supply to the affected area of the heart? A. That is correct. That takes usually more than just the few weeks of bed rest. Sometimes it takes months.
"Q. And sometimes, as Dr. Frank said, there likely will be scarred tissue in the heart muscles? A. Yes, sir."
Dr. Nussbaum, when questioned concerning the significance of an increase in the white blood count, stated:
"That can occur with many, many things. It can occur with pure and simple arterial occlusion; can occur with an infarct within the heart muscle; can occur in acute fevers, and many other acute infectious conditions. It simply means there is undergoing a tissue change in the body, whether it be artery, heart, leg, or anything else. One cannot diagnose it specifically.
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"Q. Now, let's take rheumatic fever, for instance, if you are disabled from rheumatic fever, could that involve the heart? A. It may * * * you gave the example of rheumatic fever, which causes a generalized infection, and very often it leaves the heart affected, the original infection itself always involves the heart, but many times it can clear up and leave the heart perfectly sound and healthy; but it very well may damage the heart to the extent where the individual is incapacitated from that time on.
"Q. What about a thyroid condition? A. A thyroid condition, if it is poisonous or toxic goiter, it may affect the heart, and damage the heart.
"Q. But if the thyroid condition is changed or eliminated, the heart is normal again? A. Yes.
"Q. So, that is not really heart trouble, is it? A. It is not heart trouble. It can produce a bad functioning of the heart, which returns to normal once the cause is removed.
"Q. So the disability is really caused by the rheumatic fever, or thyroid condition? A. That is right.
"Q. And in this case the coronary occlusion caused the disability? A. Yes, in my opinion."
Dr. Nussbaum further testified that the occlusion arises within the artery. He stated: "The artery is lined by a sheath, and that sheath can degenerate and cause the formation of a blood clot inside the artery. That may occur near the origin of the artery, or near the main aorta as it comes out of the heart, or it may involve a smaller branch of the artery way down near the terminal divisions of the artery, but it is within the artery itself that a blood clot arises that causes the occlusion."
Appellant contends that coronary occlusion is heart trouble within the meaning of the policy, and that since Dr. Frank's disability was caused by coronary occlusion he was not entitled to recover, for the reason that the policy sued on expressly excepts from coverage disability caused by heart trouble within six months of the policy date.
Respondent's contention is that coronary occlusion is not a disease of the heart, but merely a disease of the coronary artery, and therefore not "heart trouble" within the meaning of the policy. Respondent's contention is based upon the theory that the coronary arteries are not a part of the heart, but are a part of the arterial system not directly related to the heart.
The overwhelming weight of the evidence is to the effect that there is a structural organic unity of the coronary arteries and the other structures of the heart. This appears from the testimony of Dr. Frank himself when he testified that the coronary arteries were imbedded within the heart. Functionally, the coronary arteries are a part of the arterial system, as are the arteries in the wrist or leg, but, anatomically, they are a part of the heart, and, in our opinion, any pathology within these coronary arteries is an injury to the heart, and heart trouble within the meaning of the policy. Furthermore, it appears from Dr. Nussbaum's testimony that there was actual heart damage as a result of the coronary occlusion, and that one of the purposes in prescribing bed rest was to allow the heart to heal, and to permit the establishment of collateral circulation in the heart.
Respondent further contends that defendant's motion for new trial is too insufficient to preserve for review the assignment that there is no evidence to support the finding and judgment of the trial court. The grounds of defendant's motion for a new trial are that the judgment is against the evidence, against the weight of the evidence, against and contrary to the law, against and contrary to the law applicable to the evidence; that the judgment is for the wrong party, and should have been for the defendant. In support of respondent's contention there is cited Boswell v. Saunders, Mo.App., 224 S.W.2d 125. There is no merit to respondent's contention.
This is a jury waived case and the scope of appellate review is governed by Section 114 of the General Code for Civil Procedure, Laws 1943, page 353, Mo.R.S.A. § 847.114. Subsection (d) of said section provides that, on appeal, the question of the sufficiency of the evidence to support the judgment may be raised even though the question was not raised in the trial court. It is also our duty, under said section of the Code, to review the case upon both the law and the evidence, as in suits of an equitable nature. See also, Supreme Court Rules, sec. 3.23.
In our opinion, the trial court erred in finding for plaintiff. The judgment appealed from is reversed.
HUGHES, J., concurs.
McCULLEN, J., dissents in separate opinion.
I am unable to agree with the opinion written by Presiding Judge Anderson reversing the judgment of the Circuit Court in this case. The policy upon which this suit is based provides for certain benefits to be paid to the insured in the event of disability caused by accident or sickness except that disability originating before six months from the date of the policy and caused by "tuberculosis or heart trouble" is not covered. Disability beginning more than six months after the policy date is covered regardless of the cause.
Plaintiff himself is a physician. He graduated from the Medical Department of the University of Illinois in 1913 and has practiced his profession since that time. Plaintiff testified at length as to his own condition and also presented the testimony of Dr. Robert Nussbaum who graduated from the Washington University Medical School in 1936, and has practiced his profession since that time. The defendant insurance company presented the testimony of Dr. Martin Davis who graduated from Northwestern University in 1940 and has practiced his profession since that time. The testimony of Dr. Frank himself and of Dr. Nussbaum is set forth at length in the Presiding Judge's opinion and need not be restated here in detail. Their testimony is to the effect that plaintiff suffered from a coronary occlusion which is merely a disease of the coronary arteries and is not "heart trouble."
The testimony of Dr. Davis on behalf of defendant is also set forth in the Presiding Judge's opinion and is to the effect that, structurally, the coronary arteries are a part of the heart. The opinion of the Presiding Judge states his conclusion as follows: "The overwhelming weight of the evidence is to the effect that there is a structural organic unity of the coronary arteries and the other structures of the heart. This appears from the testimony of Dr. Frank himself when he testified that the coronary arteries were imbedded within the heart." I am unable to agree with that view. As I read the testimony of all the doctors in this record, I am impelled to the conclusion that the overwhelming weight of the evidence does not favor the contention of defendant, but, on the contrary, I believe the weight of the evidence is in favor of plaintiff's contention. The reason for this view will be made evident by a few excerpts from the testimony of Dr. Frank and of Dr. Nussbaum. Dr. Frank, as plaintiff, testified:
"Q. What was your sickness? A. Coronary occlusion.
"Q. And was that the diagnosis made by Dr. Nussbaum? A. Yes, sir.
"Q. And is that what you were treated for? A. Yes, sir.
"Q. Were you treated for heart trouble? A. No, sir.
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"Q. And you were treated for coronary occlusion? A. Yes, sir.
"Q. And that was the diagnosis in your case? A. Yes, sir. The most important drugs used in heart disease are digitalis and quinidine, and other drugs of that type, which was not used in my case at all.
"Q. They did not use that in your case at all, is that correct? A. That is correct."
Further testimony by Dr. Frank was as follows:
"Q. Is your disability caused by heart trouble? A. No, sir.
"Q. It was just merely caused by coronary occlusion? A. That is right.
"Q. That was the diagnosis in your case? A. That is right."
Dr. Nussbaum testified on behalf of plaintiff:
"Q. And did you make any further diagnosis of this man's condition? A. Yes, sir. I determined by a course of events, which included vascular collapse, and also by laboratory data, and by an electro-cardiogram, that he had a coronary occlusion.
"Q. It was definitely diagnosed as coronary occlusion? A. Correct.
"Q. There is no question about that? A. None whatever.
* * * * * *
"Q. And that caused the plaintiff's disability in this case? A. Yes, sir.
* * * * * *
"Q. What do you mean by coronary occlusion? A. Stoppage of the coronary artery; in this case, by a blood clot.
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"Q. And it may or may not affect the heart? A. Correct.
"Q. And the symptoms or disability or sickness results from coronary occlusion? A. Correct."
Dr. Nussbaum further testified that the symptoms produced by the coronary occlusion which include shock and pain caused the disability; that Dr. Frank was treated for coronary occlusion and not for heart trouble.
Dr. Nussbaum further testified that although the heart was not involved, there might have been some heart damage as the result of the coronary occlusion but the heart involvement was due to the coronary occlusion and to nothing else; that "The two structures are separate and distinct, functionally that is." The doctor was then asked whether that is true anatomically and answered: "Insofar as the contact, naturally, is concerned, they lay one close to the other, like the ear to the cheek, but the ear is not part of the cheek, although it lays next to the cheek."
It is true that Dr. Frank, in answer to a leading question, did testify as shown by the opinion of the Presiding Judge herein, that the coronary arteries are incorporated in the body of the heart, but Dr. Frank immediately followed the above testimony by saying, "I think I can clarify that a little by stating that the coronary arteries are definitely not a part of the heart, as they originate from the artery from which they arise, which is the aorta, and along their course they dip into the body of the heart." (Emphasis mine.)
It is true that Dr. Martin Davis testified for defendant, as set forth in the opinion of the Presiding Judge that, "The right coronary goes around the back of the heart, and goes down between the two ventricles and supplies branches to the back of the heart and to the wall between the two chambers. * * * they are part of the vascular system * * * the vascular system includes the blood vessels of the human body, including those of the heart, some people might call it the cardio-vascular system; the heart is really a specialized muscular portion of the system to act as a pump.
"Q. How about structurally? What are the coronary arteries, are they part of any particular structure of the body? A. Yes, they are a part of the heart."
The record shows a conflict in the testimony between Dr. Frank and Dr. Nussbaum on one side and Dr. Davis on the other. The testimony of Dr. Frank and Dr. Nussbaum is to the effect that the coronary occlusion involved herein was not "heart trouble" whereas the testimony of Dr. Davis was to the effect that such occlusion was "heart trouble." We thus have before us two medical theories concerning the true meaning of the phrase "heart trouble." In other words, the phrase "heart trouble" used in defendant's policy is so ambiguous in meaning that there are two distinct medical theories shown in the record as to whether or not a coronary occlusion can properly be said to be "heart trouble."
It appears, therefore, that the clause in the policy excluding "heart trouble" from coverage is decidedly ambiguous. If the defendant insurance company desired to exclude "coronary occlusion," or other blood circulatory diseases and ailments from the coverage of its policy, it had a clear right to do so, but it should have said so in plain language in the policy in order to make such exclusion binding on its policyholder.
This court, in my opinion, should, instead of deciding the ambiguity in favor of the insurer, resolve that doubt against the defendant company which drafted the policy. Such a holding as I suggest would be in accordance with the established rule in this state which holds that provisions in insurance policies designed to cut down, restrict or limit insurance already granted or introducing exceptions or exemptions must be strictly construed against the insurer.
Our Supreme Court en banc long ago laid down the rule governing the construction of insurance policies in this state. That rule has never been changed. In State ex rel. Security Mut. Life Ins. Co. v. Allen et al., 305 Mo. 607, 267 S.W. 379, the Supreme Court held that an insurance policy must be construed liberally in favor of the insured and against the insurer; that the construction most favorable to the insured must be adopted though otherwise intended by the insurer where the policy is susceptible to two interpretations equally reasonable; that the policy must be so construed, if possible, as not to defeat the claim to the insurance and that provisions limiting or avoiding liability must be construed most strongly against the insurer. See also State ex rel. Mills Lumber Co. v. Trimble, 327 Mo. 899, 39 S.W.2d 355; State ex rel. Mutual Benefit Health and Accident Ass'n v. Shain et al., 350 Mo. 422, 166 S.W.2d 484; Thrower v. Life Casualty Ins. Co. of Tennessee, Mo.App., 141 S.W.2d 192.
For the reasons above stated, I cannot agree with the opinion of the Presiding Judge herein.