Opinion
No. 28286.
February 19, 1952. Motion for Rehearing or for Transfer to Supreme Court Denied and Opinion Modified March 17, 1952.
Fordyce, Mayne, Hartman, Renard Stribling and William W. Sleater, Jr., all of St. Louis, J. W. Thurman, Hillsboro, Joseph H. Collins, New York City, of counsel, for appellant.
Dearing Matthes, Hillsboro, for respondent.
This is an action on a policy of life insurance. The insured was Howard L. Portell who died January 14, 1950, of coronary thrombosis. His wife, the plaintiff, was the beneficiary, and she brought this suit for two thousand dollars which is the amount of the policy. The defendant contends that the insured knowingly made false representations upon which it relied when the policy was issued. The premiums that had been paid were tendered into court and the defendant sought to be relieved of further liability on the ground of the alleged fraudulent representations. There was a verdict and judgment for the plaintiff and the defendant prosecutes this appeal.
The policy of insurance was introduced in evidence and disclosed that it had been applied for in April of 1948. The plaintiff testified that her husband was then regularly working for a glass company in the packing room. He had never complained of having heart trouble or of being ill in any way. In addition to his regular employment, which was manual labor, he made repairs and alterations about their home which called for him to mix concrete and to do other things requiring strenuous exertion. Mrs. Portell stated that she thought every one should have a periodical physical examination and because of this she persuaded her husband to go to a Dr. Rutledge for a check up in May of 1947. The doctor gave him a prescription. She testified that her husband would belch after eating a meal and that he thought the medicine given him was for indigestion. On December 5, 1949, the insured became sick and went to see Dr. Rutledge, who, according to the plaintiff, then suggested that Portell should go to St. Louis for an electrocardiogram.
On January 14, 1950, Portell died and soon after his death a representative of the defendant company called upon Mrs. Portell. He filled out a paper designated as "Proofs of Death Claimant's Statement", which she signed. Some time later the same representative called upon her and secured her signature to a document authorizing any physician to disclose to the insurance company any records concerning the insured decedent.
Before the policy of insurance was issued the insured had been examined by a Dr. Bolgar, on behalf of the insurance company. His report was introduced in evidence and was in the usual form of printed questions to which the examiner writes his answers. One of the questions was: "(a) Of the Heart? (Before and after exercise) If a murmur is present, describe in detail, giving location, time and transmission, position of apex beat and degree of hypertrophy." The answer to this question was "No".
With the above evidence the plaintiff rested her case and the defendant called to the stand its local agent, who testified that he had taken the application for the policy and that after Mr. Portell died he called upon the plaintiff to prepare her claim. She answered the questions contained in the "Proofs of Death Claimant's Statement" and told him that Dr. Rutledge had been Portell's physician. The witness did not know from whom he had received an exhibit designated "Proofs of Death Short Medical Certificate", but he identified the signature of Dr. Rutledge which was signed to the document. This exhibit gave as the cause of death "coronary thrombosis" due to coronary sclerosis. The statement also said that the coronary sclerosis had been of two and one-half years duration at the time of death.
Dr. Bolgar was then called as a witness, and, after being identified as a medical examiner for the defendant company, testified that he had asked the insured certain questions and that the answers to the questions appeared on the application for insurance designated "Applicant's Statements to Agent or Medical Examiner". One of these questions was: "What clinics, hospitals, physicians, healers or other practitioners, if any, have you consulted or been treated by, within the past five years?" The answer was Dr. Rutledge, in 1947, for check up, no ailment was detected. In the same questionnaire the insured had stated that he had a left varicocele and answered other questions relating to his health. Dr. Bolgar stated that he examined Portell, employing the customary methods of percussion and auscultation in examining his heart and had found nothing wrong. He concluded his testimony by stating that as far as he could tell from a careful examination Portell was a normal man to whom any company could sell insurance. The prescription given by Dr. Rutledge in 1947 was for amytol and the witness stated that it was ordinarily given for coronary diseases, but frequently prescribed to people who did not have heart trouble and that it induced sleep.
An investigator for the company testified that he had presented to Dr. Rutledge the letter signed by Mrs. Portell, authorizing any doctor to disclose his records relating to treatment of the insured and that Dr. Rutledge gave him a letter covering the subject. The letter was put in evidence and stated that Portell came to the writer on May 5 of 1947 and complained of epigastric distress of one week's duration. Amytol and aminophyllin were prescribed. The letter further states:
"My findings were heart (further study indicated), * * * and arrangements were to be made later for an EKG. * * *
"I saw him on several occasions after that when treating other members of the family, and he would always say that he felt fine and it is at least partly my fault that I did not insist on going ahead with the electrocardiogram which at that time would have meant a trip to St. Louis. Altho my records show that I felt that his heart was the cause of his trouble back in May, 1947, I remember at the time that he was somewhat frightened and for fear of causing more trouble by increasing his fear, I probably went too far the other way and did not stress his condition enough and as too often happens things were allowed to drift.
"When I next saw him as a patient on December 5, 1949 at which time he complained of pain coming on at work — not only epigastric but also substernal accompanied by and partially relieved by belching."
The deposition of a doctor employed by the insurance company to pass upon applications for insurance was introduced. In this deposition he stated that the application would not have been approved had it disclosed that the applicant had been treated for epigastric disturbances and had been given amytol and that an electrocardiographic study of his heart had been suggested.
Upon this evidence the defendant rested its case and the plaintiff in rebuttal stated that she had never seen the paper designated "Proofs of Death Short Medical Certificate" signed by Dr. Rutledge until it was shown to her at the trial. Nor did she see the letter that was written by Dr. Rutledge, but she did receive a copy of it after it had been sent to the insurance company. She testified that she had been a patient of Dr. Rutledge during the period covered by the evidence and that he had never at any time told her that her husband had heart disease.
Several coworkers and friends of Portell testified that he lost no time from work and appeared to be in good health.
As stated, the jury returned a verdict for the plaintiff, in the sum sued for, upon the foregoing evidence; but the defendant company asserts that it was entitled to a directed verdict. It maintains that the proof of death is conclusive against plaintiff. This is upon the theory that the proof of death constitutes statements against interest and that if it remains uncontradicted it must be taken as true. In pressing this contention, the defendant first points out that the insured, in answer to the questions by Dr. Bolgar about treatments he had received, stated that he had gone to Dr. Rutledge for a check up but that no ailments had been detected. It is then stressed that the "Proofs of Death Short Medical Certificate" signed by Dr. Rutledge shows coronary sclerosis of two and one-half years duration. The letter given by Dr. Rutledge to the company investigator is also considered by appellant as a statement against interest by plaintiff.
It is true, as we stated in Smiley v. John Hancock Mutual Life Ins. Co., Mo. App., 52 S.W.2d 12, loc. cit. 14: "Proofs of death furnished by a beneficiary are admissible in evidence against him as admissions against interest, and when not contradicted or explained may preclude his recovery". Bailey v. American Life Acc. Ins. Co., Mo.App., 96 S.W.2d 903; Kirk v. Metropolitan Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333; Prince v. Metropolitan Life Ins. Co., 235 Mo.App. 168, 129 S.W.2d 5; Walker v. National Life Acc. Ins. Co., Mo.App., 130 S.W.2d 668. It is likewise true that statements relating to the cause of death introduced in evidence by the plaintiff would be conclusive against her. Frank v. Atlanta Life Ins. Co., Mo.App., 211 S.W.2d 940. Since there is no question that Dr. Rutledge was the insured's physician and the letter written by him was admitted without objection and the "Proof of Death Short Medical Certificate" was admitted as part of the proof of claim, it may be said that there was an admission that Portell died of heart trouble of two and one-half years duration. On a similar state of facts we reached a contrary conclusion in Houston v. Metropolitan Life Ins. Co., 232 Mo.App. 195, 97 S.W.2d 856, but it appears that case should be overruled insofar as it is in conflict with the views herein expressed.
However the sole question of whether or not Portell had a heart ailment at the time he applied for the policy is not determinative of this case. It might be under other types of policies where it is provided that the contract is void if the insured is not in sound health at the time the policy is issued. This sound health clause is a limitation of liability by the contract itself. It might also be sufficient where there was a warranty of good health by the insured in his application. However, in discussing the force of statements contained in the application for insurance, we stated in Schuetzel v. Grand Aerie Fraternal Order of Eagles, Mo.App., 164 S.W.2d 135, loc. cit. 139: "In determining whether a statement of the insured, contained either in the original application for the policy or in an application for reinstatement, is a warranty or a representation, we must bear in mind the rule that courts are strongly inclined against forfeitures and will consider a statement to be a warranty only when it clearly appears that such was the intention of the contracting parties, for the doctrine of warranty is one of great rigor and frequently operates harshly upon the insured."
All but one of the cases, upon which the appellant relies, involved policies containing the sound health clause. Kirk v. Metropolitan Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333; Smiley v. John Hancock Mutual Life Ins. Co., Mo.App., 52 S.W.2d 12; Bailey v. American Life Acc. Ins. Co., Mo.App., 96 S.W.2d 903; Prince v. Metropolitan Life Ins. Co., 235 Mo.App. 168, 129 S.W.2d 5; Walker v. National Life Acc. Ins. Co., Mo.App., 130 S.W.2d 668; Hendricks v. National Life Acc. Ins. Co., 240 Mo.App. 557, 210 S.W.2d 706. The one exception is the case of Frank v. Atlanta Life Ins. Co., Mo.App., 211 S.W.2d 940, which dealt with a policy restricting liability where the death occurred within a certain period from any disease of the heart.
We have no such policy before us and since it cannot be, and is not, contended that the insured made any warranty as to his health, the defendant, in order to defeat recovery upon the policy, carried the burden of showing, not only that Portell was suffering from coronary sclerosis at the time that he applied for the policy, but that any statement of his to the contrary was made in bad faith with intent to deceive. Schuetzel v. Grand Aerie Fraternal Order of Eagles, Mo.App., 164 S.W.2d 135.
Regardless of any probative force that Dr. Rutledge's letter may have had as to the existence of the disease in 1947, it could not be said that there was conclusive proof that Portell knew he suffered from a heart ailment. The letter did not show that the doctor had informed his patient of his findings when the examination was made in 1947, for he said that he "did not stress his condition enough".
Against the proof offered by the defendant was the statement of its own physician that he found Portell in good condition and Portell's friends' testimony that he appeared to be in good health and engaged in physical exertion. It may be true that the testimony of lay witnesses as to the condition of the insured's health is of little probative value, New York Life Ins. Co. v. Feinberg, Mo.Sup., 229 S.W.2d 531, as it relates to the actual existence of a disease, but the defendant had the burden of proving that Portell knew he had heart trouble. If its own physician could not detect it and Portell's friends saw him frequently engaging in physical exertion that one, who knew he was so afflicted, would not ordinarily do, this was evidence for the jury's consideration on the vital point in issue, which was, not what caused Portell's death but whether or not he knowingly misrepresented his state of health.
Since the plaintiff made her case and the defense raised only issues of fact, which were properly submissible to the jury, it does not appear that the court erred, and for the reasons stated it is the recommendation of the Commissioner that the judgment be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
BENNICK, P. J., and ANDERSON and RUDDY, JJ., concur.