Opinion
No. 41335.
April 10, 1950. Motion for Rehearing or to Transfer to Court en Banc Denied May 8. 1950.
APPEAL FROM THE CIRCUIT COURT OF CAPE GIRARDEAU COUNTY, L. D. JOSLYN, J.
Allen L. Oliver, Oliver Oliver, Cape Girardeau, for appellants.
Finch Finch, Cape Girardeau, Jones, Hocker, Gladney Grand, Vincent L. Boisaubin, St. Louis, Ferdinand H. Pease, New York City, of counsel, for respondent.
This is a suit in equity to cancel two policies of insurance in the face amount of $10,000.00 each, issued by New York Life Insurance Company, respondent, upon the life of Philip Feinberg. The children of the deceased insured were named beneficiaries in both policies. The beneficiaries, with their legally appointed guardian and curatrix, were joined as defendants. This appeal has been taken from a decree in favor of respondent cancelling both policies.
Philip Feinberg made written application to respondent for the policies. The application is in two parts, Part I being dated February 4, 1944, and Part II "Answers to the Medical Examiner" being dated February 9, 1944. Both policies are dated May 3, 1944. One was delivered on May 15, 1944, and the other was delivered ten or twelve days later. The premiums on both policies were paid at the time of delivery. Feinberg died on April 5, 1945.
On July 6, 1945, respondent notified the beneficiaries that the policies were rescinded and cancelled and offered to return the premiums. The suit to cancel was filed on January 28, 1946, and at that time respondent paid into court the amount of premiums paid on the policies, together with interest thereon.
The petition sought cancellation of the policies on two grounds: first, that the policies were obtained through false representations made in the application, and second, that the policies never became effective because Feinberg consulted a physician for heart disease, which contributed to his death, between the time he was examined for the insurance and the dates when the policies were delivered, in violation of a contractual condition precedent contained in the application. On the theory of misrepresentations, it is alleged that Feinberg stated falsely and fraudulently in his application, in answer to certain questions, that he had never consulted a physician for any disease of the heart or blood vessels; that he had not consulted or been treated by any physician within five years preceding the application; and that he had not consulted or been treated by any physician after the medical examination for the insurance and prior to the delivery of the policies. It was alleged that prior to February 4, 1944, Feinberg was afflicted with a disease of the heart or blood vessels which contributed to his death; that he had consulted and had been examined and treated by a physician on numerous occasions within five years preceding his application for a disease of the heart and blood vessels which contributed to his death; and that subsequent to his medical examination for the insurance and prior to the delivery of the policies he had been examined and treated by a physician for the heart disease which contributed to his death.
The answer put in issue all of the allegations of the petition and prayed for judgment upon the policies in favor of the defendants-beneficiaries.
On a prior appeal, a judgment in favor of respondent cancelling the policies was reversed, and the cause was remanded for a new trial. New York Life Ins. Co. v. Feinberg, 357 Mo. 1044, 212 S.W.2d 574. We held that under the provisions of Sec. 5843, R.S. 1939, Mo.R.S.A. § 5843, the misrepresentations statute, when a jury trial is demanded, it must be accorded, even in a suit in equity, upon the issue as to whether the matters claimed to have been misrepresented actually contributed to the death of the insured. (In the interest of brevity, we refer to this issue as the "issue of contribution.") Accordingly, we held the trial court guilty of error in entering a judgment cancelling the policies, in disregard of the verdict of a jury answering in favor of the defendants all interrogatories submitted to it. We also decided the following points: (1) Since each policy contains a provision that it shall be incontestable after two years from its date of issue, the respondent has no adequate remedy at law so that the circuit court, sitting in equity, had jurisdiction of the suit to cancel the policies; (2) the verdict of the jury upon the statutory issue of contribution has the same effect as the verdict of a jury in an action at law; and (3) in all other respects the functions of the chancellor are not changed and the chancellor is to decide all other questions of fact.
The second trial proceeded before the chancellor and a jury. The issue of contribution was submitted to the jury upon the following interrogatory: "Did coronary sclerosis actually contribute to the death of the insured. Philip Feinberg? Answer `yes' or `no'. Answer: ____." The jury answered this interrogatory in the affirmative.
In his decree the chancellor found that Feinberg's statements in his application that "he had never had, and had never consulted a physician for, any ailment or disease of the heart or blood vessels and had never consulted any physician or been examined or treated by any physician within the past five years were false." The trial court further found that at the time of making such false statements "the insured knew that he had a disease or ailment of the heart or blood vessels and that he had been previously, and within five years, treated and examined for, and had actually consulted physicians for, a disease of the heart or blood vessels." The court also found that "at the time of the application he did have a disease of the heart or blood vessels, to wit, coronary sclerosis; and that he had consulted and was treated by physicians, on the occasions stated, for said ailment or disease." The court adopted the finding of the jury that coronoray sclerosis actually contributed to the death of Feinberg and concluded, as a matter of law, that the policies had been procured by misrepresentations as to matters which actually contributed to the death of Feinberg and that the policies were void.
The judgment of the chancellor cancelling the policies for misrepresentation is proper if the evidence supports his findings that Feinberg's answers in the application were knowingly false and if there is substantial evidence to support the verdict of the jury that the matters misrepresented actually contributed to Feinberg's death. State ex rel. Metropolitan Life Ins. Co. v. Allen, 310 Mo. 378, 276 S.W. 877; New York Life Ins. Co. v. Feinberg, supra; Kirk v. Metropolitan Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333, 344; Columbian Nat. Life Ins. Co. v. Rodgers, 10 Cir., 93 F.2d 740, 742.
With the exception of the issue of contribution which was for the jury, we must review this case on appeal as we do any other suit in equity. We must review the evidence and come to our own conclusion upon the facts, giving due deference to the trial chancellor who saw and heard the witnesses and had the better opportunity to judge their credibility. Schneider v. Johnson, Mo.Sup., 207 S.W.2d 461, 465; Cobble v. Garrison, Mo.Sup., 219 S.W.2d 393; Zumwalt v. Forbis, 349 Mo. 752, 163 S.W.2d 574.
The case is presented upon the following evidence:
Dr. Dennis B. Elrod, a physician of Cape Girardeau, Missouri, testified that he saw Feinberg on December 25, 1942, in answer to a call from Feinberg's wife who thought he had the "flu." Feinberg was in bed. He had a slight temperature and complained of substernal pain in the chest radiating into his left shoulder. His pulse was fast and his blood pressure was low. The heart tones were not normal. There was some rales or a little moisture in the base of the lungs. He considered that Feinberg had a coronary accident or coronary occlusion. A coronary occlusion is a coronary thrombosis. A flake or scale breaks off from the coronary artery and plugs the inside or channel of the coronary artery, interfering with circulation through the coronary artery. If the plug is large enough, it will produce gangrene or an infarction of the heart muscles. Feinberg had had the chest pain for a day or two. Dr. Elrod prescribed a cough medicine, a counter-irritant for the chest, small doses of sulfothiazole, and aminophyllin for the heart. The prescriptions were phoned to the Broadway Prescription Shop. He told Feinberg he thought he had a heart attack and suggested he go to Southeast Missouri Hospital where his case could be studied and an electrocardiogram made. Feinberg did not want to go to the hospital. He asked Dr. Elrod to recommend some one in St. Louis, and the doctor recommended Dr. John Hammond, a heart specialist. No one else was present during this conversation. Dr. Elrod next saw Feinberg on February 16, 1943, at his office. Feinberg came in to tell him he had gone to Dr. Strauss in St. Louis and had not gone to Dr. Hammond. Dr. Strauss is a heart specialist. Dr. Elrod checked his heart and blood pressure. His heart seemed normal on stethoscopic examination. "I asked him what Dr. Strauss had found or had told him, and he said he had some trouble with an artery of his heart. I asked what type medicine he had prescribed and he told me it was a tablet which he though was nitroglycerine." Nitroglycerine is used for heart disease to relieve pain. On December 25, 1942, he advised Feinberg to restrict his activities — that he should rest and not over-exert. It is possible to be physically active after such a heart attack. It is not possible to tell from a person's physical appearance that he has had a coronary occlusion or a coronary thrombosis after he has recovered from the acute stage of the disease.
Dr. Arthur E. Strauss of St. Louis testified that he specialized in diseases of the heart. Feinberg first consulted him on January 5, 1943, and, according to his office record, was referred to him by Dr. Elrod. Feinberg complained of pain over his left chest. He took his history, made a complete physical examination, and took an electrocardiogram. Based upon his examination and the electrocardiogram he made a diagnosis of coronary occlusion and angina pectoris dating from August 1942. He prescribed aminophyllin, phenobarbital, and nitroglycerine. He advised Feinberg to get more rest; slow down his activities; stop using tobacco; not to drive a car; and to reduce his weight. "To my best recollection I told him that in my opinion there was definite evidence of disturbance in his circulation, and that I was advising the course of treatment, both medical and the restrictions on his activity, because of that." He examined and treated Feinberg on seven occasions prior to February 4, 1944, when Feinberg made application to respondent for insurance. He continued substantially the same treatment and continued to advise Feinberg to restrict his activities. He saw Feinberg on four more occasions prior to his death on April 5, 1945. Feinberg consulted him on February 22, 1944, and on March 31, 1944, when another electrocardiogram was taken. This electrocardiogram still showed damage to the heart muscle and to the coronary circulation. On June 5, 1944, Feinberg complained of more severe pains and another electrocardiogram was taken which showed substantially the same condition of his heart.
On April 5, 1945, Dr. Strauss was called to the apartment in St. Louis where Feinberg was staying. He found him in serious condition with an aggravation of his heart condition. Feinberg died the same day. He identified his signature upon the certificate of death which was later offered in evidence. The death certificate showed: "Immediate cause of death — coronary occlusion, duration — hours; due to coronary sclerosis, duration — three years." Testifying with respect to the certificate of death he stated:
"Q. It was your opinion, Doctor was it, that this condition of the coronary arteries lasted for three years, at the time of his death? A. Yes.
"Q. Was that the condition you had been treating him for during all this period of time? A. Yes.
"Q. And that is a condition of the heart or blood vessels, is it not? A. That is correct.
"Q. Would you say that condition of coronary sclerosis contributed to Mr. Feinberg's death? A. Yes, sir."
Dr. A. L. Fuerth, a physician of Cape Girardeau, testified that he had examined Feinberg for respondent on February 9, 1944. He made a stethoscopic examination of the heart and took his blood pressure. There were no significant heart sounds. The blood pressure was up. Respondent requested a second blood pressure reading which was taken about one week later. Feinberg answered in the negative the questions relating to his having had or consulted a physician for heart disease. Dr. Fuerth made the same type of examination of Feinberg that he did for other applicants for insurance. He felt that Feinberg was a good insurance risk. Feinberg told him nothing about previous treatments for heart disease and he found no evidence to show that Feinberg had coronary sclerosis. He did not take an electrocardiogram.
Dr. Charles F. Wilson and Dr. A. M. Estes, who practiced internal medicine, including cardiology, gave opinion evidence upon the electrocardiograms taken by Dr. Strauss. They stated that all of the electrocardiograms indicated an abnormal heart typical of coronary heart disease and that the one taken on January 5, 1943, was quite typical of a coronary occlusion. In response to hypothetical questions, which included the assumption that Feinberg "died of a coronary occlusion, duration hours, and coronary sclerosis, duration three years," they stated that the fundamental heart condition revealed by the electrocardiograms contributed to Feinberg's death. Both testified that after a person has had a coronary occlusion there are no evidences in physical appearance indicative of heart disease and often the damage to the heart can be detected only with an electrocardiograph. Although inadvisable, it is quite possible for a person who has had a coronary occlusion to be physically active and to engage in sports and contests.
Home George, a pharmacist, identified copies of the prescriptions given by Dr. Elrod to Feinberg on December 25, 1942. The prescription for aminophyllin bore the direction "three times a day for heart." Such directions are a part of the prescription and according to the usual practice of his pharmacy are put on the container. Based on such practice, he testified: "Q. Will you testify now, Mr. George, that the words `for heart' were put on the label that went out from your shop on the 25th of December, 1942, of your own personal knowledge? A. I would say it was on there, yes."
Testifying for the defendants, Dr. J. H. Cochran, a physician of Cape Girardeau, stated that he attended Feinberg on one occasion in August 1942, when he had "flu." He found no evidence of heart trouble but had no way of knowing whether Feinberg suffered a coronary occlusion in December 1942. Unless Feinberg was in an acute stage of coronary occlusion, the examination he made would not reveal anything wrong with his heart. It would have taken an electrocardiograph to find anything and he did not examine him after December 25, 1942.
Feinberg's widow, who had remarried since his death, testified that he had operated two ladies' apparel shops — one in Cape Girardeau and one in Blytheville, Arkansas. He managed both stores; handled all the buying; opened and marked merchandise; and sold on the floor. Most of the stock was delivered to the Cape Girardeau store. Feinberg would mark it; repack it in boxes; load it in his car; and take it to Arkansas where he arranged it in the Blytheville store. He drove his own car and made buying trips to St. Louis, Chicago, and elsewhere. He often carried large boxes of clothing.
He was quite active at home where he fired the furnace, emptied the ashes, cut grass, and shoveled snow. He played with the children, took them swimming and horseback riding, and sometimes played softball. In 1944 he attended Cub Scout meetings and engaged in athletic contests. He was a heavy eater. Sometimes he complained of indigestion after a big meal.
Mrs. Feinberg was present when Dr. Elrod called on December 25, 1942. She did not hear the doctor say anything about a heart condition and had no recollection that Dr. Elrod said anything about her husband going to the hospital. After December 25, 1942, there was no change in Feinberg's daily life. He continued to work hard at the store; looked normal; continued to eat heartily; and never complained of pains in the chest or about his heart. He went to St. Louis frequently on business.
On December 25, 1942, Feinberg was coughing and complained of pain in his chest. He was in bed about two days and complained of the chest pain for about twenty-four hours. He did not tell his wife about seeing Dr. Strauss or about the electrocardiograms which were taken.
Bertha Feinberg, a sister of the deceased, stated that she was licensed as a practical nurse in New York State. Feinberg died in her apartment in St. Louis. On the day preceding his death Feinberg was buying for his store. That evening they had dinner with friends at whose home they stayed until about 11 p. m. Feinberg ate heavily. After they got back to her apartment they talked about business matters for some time until they retired. Feinberg called her about 5 a. m. complaining of indigestion and asked for bicarbonate of soda. She gave him some and he threw it up. He then went to sleep and slept until about 7 a. m. She tried unsuccessfully to reach two physicians for whom she had worked. In trying to locate a doctor who lived near by she noticed Dr. Strauss' name in the telephone directory and called him. She did not know he had been treating Feinberg. Dr. Strauss prescribed Bisodol and then left. He returned after Feinberg became critically ill and Feinberg died about 1 p. m.
In addition to the foregoing witnesses, some eighteen friends, acquaintances, and associates of Feinberg testified for defendants. The tenor of this testimony is the same and it may be summarized as follows: Feinberg appeared well and healthy; he had a happy disposition and loved to engage in scuffling and he was a big eater; he never complained of pain in his chest or about his heart, or of vomiting, or of shortness of breath; he never told any one he had heart trouble or was going to a doctor; he attended Cub Scout meetings and school outings and engaged in athletic contests; he played with his children and took them swimming; he worked hard and did hard physical work. He appeared to lead a happy and normal life.
In rebuttal, Dr. Raymond A. Ritter testified that while making an examination of Feinberg in February 1945, for another insurance company, Feinberg stated that an X-ray had been made of his heart incident to an application for insurance in the Metropolitan Life Insurance Company and that the insurance was rated up.
The diagnosis of Dr. Elrod that Feinberg had suffered a coronary occlusion on December 25, 1942, is corroborated by the testimony of Dr. Strauss and by the opinions of Dr. Wilson and Dr. Estes based upon the electrocardiograms which were taken. Neither the testimony of Dr. Fuerth, the insurance medical examiner, nor that of Dr. Cochran is inconsistent therewith. Dr. Fuerth made a routine examination without the aid of an electrocardiograph and the undisputed testimony is that, after the acute stage of a coronary occlusion is passed, the condition is frequently not detectable by a stethoscopic examination. Dr. Cochran saw Feinberg on one occasion in August 1942, some months before the heart attack which he suffered in December of that year. There is no evidence that a person who has had a coronary occlusion will have the appearance of illness after the acute stages of an attack are passed. On the contrary, the evidence is that such a person would give no outward appearance of heart disease and that he could engage in strenuous physical activity, however foolhardy it might be to do so. Under these circumstances the testimony of lay witnesses that Feinberg appeared to be well and healthy and that he was physically active is of little, if any, probative value. Frank v. Atlanta Life Ins. Co., Mo.App., 211 S.W.2d 940, 942; Hendricks v. National Life Acc. Ins. Co., Mo.App., 210 S.W.2d 706, 707; Kirk v. Metropolitan Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333, 341; Smiley v. John Hancock Mut. Life Ins. Co., Mo.App., 52 S.W.2d 12, 15. Nor is such evidence persuasive that Feinberg had no knowledge that he had heart disease and had been treated therefor, in view of the positive testimony of Dr. Elrod; the fact that Feinberg consulted Dr. Strauss, a known heart specialist; and the testimony of Dr. Strauss concerning the drastic restriction of Feinberg's activities which he advised because Feinberg had a disturbance in his circulation.
The findings of the chancellor that Feinberg was suffering with the heart disease of coronary sclerosis at and prior to the time he applied for insurance; that he had previously consulted and been treated by physicians for such disease; that Feinberg knew he had heart disease and had been treated by physicians therefor; and that Feinberg knowingly gave false answers regarding such matters in the application for insurance, are amply supported by a preponderance of the evidence. There is an abundance of evidence to support the verdict of the jury that coronary sclerosis contributed to the death of Feinberg. Upon the facts, and the jury's verdict, the judgment cancelling the policies should be affirmed unless other errors prejudicial to defendants occurred in the trial below. State ex rel. Metropolitan Life Ins. Co. v. Allen, supra; New York Life Ins. Co. v. Feinberg, supra.
Defendants argue that the verdict of the jury in the first trial, in their favor, was based upon substantial evidence and that it ought to be reinstated. This contention overlooks the fact that such verdict was advisory only on all issues except the issue of contribution, and even as to the latter issue, the trial judge had the discretionary right to set aside the verdict if he deemed it to be against the weight of the evidence. New York Life Ins. Co. v. Feinberg, supra.
Defendants complain of an instruction given to the jury submitting the issue of contribution. It is argued that instructions have no place in an equity case. This is generally true, as is illustrated by Troll v. Spencer, 238 Mo. 81, 141 S.W. 855, Ann.Cas. 1913A, 276, and other cases cited by defendants, but we have held that "when demanded, a jury trial must be accorded on the specific issue provided in the statute and the verdict of a jury on that issue would have the same effect as in a suit at law." New York Life Ins. Co. v. Feinberg, supra [357 Mo. 1044, 212 S.W.2d 579]. In this case, unlike the usual equity case, it was entirely proper to instruct the jury upon the issue of contribution which had to be submitted to it.
It is then argued that, if it was proper to give any instructions, the instruction given should have covered the whole case so that the jury would have had the opportunity of determining whether Feinberg made material representations which were knowingly false. These were issues to be decided by the chancellor and not the jury. If they had been submitted, the jury's verdict thereon would have been merely advisory and not binding upon the trial court. New York Life Ins. Co. v. Feinberg, supra.
The instruction told the jury that the sole question to be submitted was whether the disease of coronary sclerosis actually contributed to Feinberg's death and that it need not be the sole and only cause of his death. This was a correct statement of the law. State ex rel. John Hancock Mut. Life Ins. Co. v. Allen, 313 Mo. 384, 282 S.W. 46, 52. The instruction then set out the submitted interrogatory, which we have previously quoted, and concluded as follows: "If, therefore, you find that coronary sclerosis actually contributed to the said death, even though you may find that some other ailment or physical condition or disturbance may also have contributed to the death, your answer should be `Yes'."
Defendants argue that the instruction constituted a comment on the evidence; that it directed a verdict; and that it should not have used the words "coronary sclerosis" since no witness had used the expression and none had defined it. The evidence in the case amply demonstrates that coronary sclerosis, a heart disease, contributed to Feinberg's death. There is no evidence of probative value as to any other contributory cause of death. Under these circumstances, we do not believe that the instruction was a comment on the evidence simply because it focused the attention of the jury upon the single issue it was to decide. Nor do we believe the instruction directed or compelled a verdict favorable to respondent since the jury was at liberty to answer the interrogatory either in the affirmative or the negative.
As to the use of the words "coronary sclerosis", the death certificate stated that this disease was a contributory cause of death. Dr. Strauss testified that he had been treating Feinberg for coronary sclerosis, that it is a condition of the heart or blood vessels, and that it contributed to Feinberg's death. Dr. Elrod, Dr. Wilson, and Dr. Estes testified that Feinberg was suffering from heart disease and the existence of coronary sclerosis, as a contributing cause of death, was submitted to the latter two doctors in hypothetical questions. In our opinion, the evidence established the fact that coronary sclerosis was a heart disease with which Feinberg suffered and which contributed to his death. We find no error in the instruction.
Finally, defendants argue that respondent offered no proof in support of the allegation of its petition that it would not have issued the policies had it known of the false and fraudulent statements of Feinberg. The application, which is a part of the policies, includes an agreement that respondent may rely upon the statements in the application and act upon them accordingly. Under such an agreement it is not necessary for respondent to prove its reliance upon Feinberg's representations since it had a contractual right to rely thereon. Smiley v. John Hancock Mut. Life Ins. Co., supra; Mack v. Western Southern Life Ins. Co., Mo.App., 53 S.W.2d 1108, 1109; State ex rel. Metropolitan Life Ins. Co. v. Allen, supra; Columbian Nat. Life Ins. Co. v. Rodgers, supra.
This case has been tried twice before two different chancellors and upon each trial the chancellor has found in favor of the respondent and entered a judgment cancelling the policies. The judgment of the chancellor on the second trial is supported by a preponderance of the evidence and the jury's verdict upon the issue of contribution is supported by ample evidence. We have not discussed the issue as to the breach of the condition precedent and its effect, if any, upon the validity of the policies since a decision on these points is not necessary to a determination of the case.
The judgment of the Circuit Court of Cape Girardeau County cancelling the policies of insurance is affirmed.
VAN OSDOL and LOZIER, CC., concur.
The foregoing opinion by ASCHEMEYER, C., is adopted as the opinion of the court.
All concur.