Wiener v. Mutual Life Ins. Co. of New York

• Citation: 179 S.W.2d 39,352 Mo. 673
• Decision Date: 06 March 1944
• Docket Number: 38674
• Parties: Meyer Wiener, Appellant, v. The Mutual Life Insurance Company of New York, a Corporation
• Court: United States State Supreme Court of Missouri

179 S.W.2d 39

352 Mo. 673

Meyer Wiener, Appellant, v. The Mutual Life Insurance Company of New York, a Corporation

No. 38674

Supreme Court of Missouri

March 6, 1944

Rehearing Denied April 3, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. Eugene J Sartorius, Judge.

Reversed and remanded.

Burnett Stern & Liberman for appellant.

(1) The verdict was against the weight of the evidence and there was no substantial evidence to support the verdict. King v. Kansas City Life Ins. Co., 164 S.W.2d 458; Ziegelmeier v. East St. Louis & Suburban Ry. Co., 330 Mo. 1013, 51 S.W.2d 1027; State ex rel. v. Camren, 226 Mo.App. 100, 41 S.W.2d 902; In re Lankford's Estate, 272 Mo. 1, 197 S.W. 147; Lionberger v. Pohlman, 16 Mo.App. 392; State ex rel. Clark v. Shain, 343 Mo. 66, 119 S.W.2d 971; Mississippi Valley Trust Co. v. Taylor, 238 S.W. 558; Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924; Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824; Mooney v. Mooney, 244 Mo. 372, 148 S.W. 896. (2) Evidence of the agreement with Dr. Alvis and of the sums received by appellant from Dr. Alvis was inadmissible. Pacific Mutual Life Ins. Co. v. Arnold, 262 Ky. 267, 90 S.W.2d 44; Comfort v. Travelers Ins. Co., 131 S.W.2d 734; Deitz v. Providence Washington Ins. Co., 33 W.Va. 526, 11 S.E. 50; Equitable Life Assur. Society of the United States v. Fannin, 245 Ky. 474, 53 S.W.2d 703; Wachovia Bank & Trust Co. v. Independence Indemnity Co., 37 F.2d 550; Dempsey v. Baltimore & Ohio R. Co., 219 F. 619. (3) Evidence of the settlements with the other insurance companies and of the payments to appellant by the other insurance companies was inadmissible. Pfiffer v. Kroger Grocer & Baking Co., 140 S.W.2d 79; Bennett v. General Accident Fire & Life Assur. Corp., 213 Mo.App. 421, 255 S.W. 1076; Camden Fire Ins. Assn. of Camden, N.J., v. Kouri, 171 Okla. 264, 42 P.2d 844; St. Onge v. Springfield Fire & Marine Ins. Co., 204 Ill.App. 139; Loncar v. Natl. Union Fire Ins. Co., 84 Mont. 141, 274 P. 844; Wells v. Thomas W. Garland, Inc., 39 S.W.2d 409; Sprinkle v. Davis, 111 F.2d 925; National Labor Relations Board v. Brashear Freight Lines, 127 F.2d 198; Marrah v. J. & R. Motor Supply Co., 165 S.W.2d 271. (4) The cross-examination of witnesses for appellant by reading from the magazine articles of Dr. White and Dr. Boas was improper and an illegitimate use of the articles. MacDonald v. Railroad, 219 Mo. 468, 118 S.W. 78, 16 Ann. Cas. 810; Cooper v. Atchison, T. & S.F. Railroad Co., 347 Mo. 555, 148 S.W.2d 773; Whitley v. Stein, 34 S.W.2d 998; Wurst v. American Car & Foundry Co., 103 S.W.2d 6; Atkinson v. American School of Osteopathy, 199 Mo.App. 251, 202 S.W. 452. (5) Instruction 3 given at the instance and request of respondent was an incorrect statement of the law and was an unwarranted comment on the evidence. Katz v. Union Central Life Ins. Co., 226 Mo.App. 618, 44 S.W.2d 250; Stoner v. New York Life Ins. Co., 90 S.W.2d 784; Heald v. Aetna Life Ins. Co. of Hartford, Conn., 90 S.W.2d 797; Rogers v. Metropolitan Life Ins. Co., 122 S.W.2d 5; Burns v. Aetna Life Ins. Co., 234 Mo.App. 1207, 123 S.W.2d 185; Brown v. Mutual Life Ins. Co. of N.Y., 140 S.W.2d 91; Comfort v. Travelers Ins. Co., 131 S.W.2d 734; Mutual Life Ins. Co. of N.Y. v. Dowdle, 189 Ark. 296, 71 S.W.2d 691.

Jones, Hocker, Gladney & Grand and Lon O. Hocker for respondent.

(1) Plaintiff is in no position on this record to claim that the verdict was against the weight of the evidence or that there was no substantial evidence to support the verdict. Woehler v. St. Louis, 114 S.W.2d 985; Cluck v. Abe, 328 Mo. 81; Connole v. Railroad Co., 340 Mo. 690; Laughlin v. Bank, 163 S.W.2d 761; State ex rel. v. Cox, 225 Mo. 901; Stoner v. Ins. Co., 90 S.W.2d 784; Memphis v. Matthews, 28 Mo. 248. (2) Even if the record admitted of this review, the weight was in defendant's favor and not against it. Holmes v. Goldsmith, 147 U.S. 164; Casualty Co. v. Tire Co., 58 F.2d 102. (3) The agreement between the plaintiff and Dr. Alvis was a circumstance admissible in evidence. Holmes v. Goldsmith, 147 U.S. 164; Casualty Co. v. Tire Co., 58 F.2d 102; Ins. Co. v. Russell, 80 S.W.2d 848. (4) Evidence of the settlements and payments by the other insurance companies was admissible as admissions and circumstances, and in addition they were testified to by Mr. Stern in plaintiff's behalf. Holmes v. Goldsmith, 147 U.S. 164; Casualty Co. v. Tire Co., 58 F.2d 102; Ins. Co. v. Russell, 80 S.W.2d 848. (5) The cross-examination of plaintiff's witnesses by presenting to them extracts from articles in medical magazines was proper. Wurst v. Car & Foundry Co., 103 S.W.2d 15. (6) Respondent's Instruction 3 properly declared the law and was more favorable to appellant than his own Instruction 1. Tripp v. Ins. Co., 144 S.W.2d 160; Stoner v. Ins. Co., 90 S.W.2d 784; Smith v. Ins. Co., 108 S.W.2d 995; Jones v. Ins. Co., 130 S.W.2d 967; Eden v. Ins. Co., 138 S.W.2d 745; Glove v. Ins. Co., 153 S.W. 770; Hamm v. Ins. Co., 237 Mo.App. 12.

OPINION

Douglas, J.

This is an action by Dr. Wiener to recover disability benefits under an insurance policy. The jury found for the insurance company. The judges of the St. Louis Court of Appeals were divided, so the case was transferred to this Court. 170 S.W.2d 174. We hear the case anew.

Dr. Wiener was an active medical practitioner for forty years and had become a recognized leader in his specialty, diseases of the eye. He had a large office practice where he examined, diagnosed, treated and advised patients. He had a large surgical practice. He regularly operated three afternoons a week besides performing emergency operations. He gave papers, addresses and lectures before numerous societies. He taught at the Washington University Medical School during all his years of practice. He was frequently called in as a consultant by other doctors. On March 24, 1936 he sustained an attack of coronary occlusion, or thrombosis. He was confined to the hospital for seven weeks, then put to bed at home. By the end of May he was permitted to go downstairs. On his physician's advice he went to California for the summer where he led the life of a convalescent. He slowly became physically active again.

He has not engaged in the practice of medicine since his heart attack. But he has not been completely quiet professionally. He has given some lectures before learned societies and at medical schools. He finished and published a book on the surgery of the eye. He has done some experimental surgery on the eyes of animals. After Pearl Harbor, upon offering his services, he was made an honorary consultant to the Medical Department of the Navy and has rendered services as a consultant. He has been examined by a number of physicians and every one has advised him not to go back to practice because of the organic disease of his heart. He has followed their advice.

The insurance company sold Dr. Wiener a policy in 1919 in the face amount of $ 10,000 for an annual premium of $ 395.90. The company insured the doctor against total and permanent disability from bodily injury or disease which would permanently, continuously and wholly prevent him from performing any work for compensation, gain or profit, or from following any gainful occupation. If such occurred the company agreed to waive the further payment of premiums and to pay him one-tenth of the face amount, or $ 1,000 a year, during the continuance of his disability. The company reserved the right to demand proof once a year of the continuance of disability.

After his attack Dr. Wiener submitted his claim of disability to the company and it was allowed. It paid him the agreed amount yearly until the payment due on July 3, 1941, which it refused and also refused to continue waiving payment of premiums. Dr. Wiener then filed this suit.

An appellate court will ordinarily determine a case on appeal on the same theory on which it was tried. The question presented is whether the parties tried the case on the theory the doctor had never been permanently or totally disabled or whether the doctor had been so disabled but had recovered. By every further reference merely to disability we mean total and permanent disability. The petition stated the doctor became disabled on March 24, 1936, and disability has continued since that date; that thereafter the company made annual payments to him until the one due on July 3, 1941, which it refused; and asked judgment for that payment and for a refund of the annual premium which the doctor paid. The answer alleged the doctor's claim of disability was originally "allowed by defendant" but the doctor "had recovered from his previous disability" prior to July 3, 1941, and has not been disabled since that date. At the trial four doctors testified Dr. Wiener was disabled on July 3, 1941, or at the date of the trial. The effect of their testimony was his disability was continuous from the time of the attack. The doctor's instruction required the jury to find the original disability and its continuance through July 3, 1941, and thereafter, but this one requirement as to the original disability is not sufficient to establish a trial theory that the original disability was in question. Especially is this so in view of the company's instruction: "In this action plaintiff sues defendant claiming he has by such disease been disabled as above stated since July 3, 1940. Defendant denies that plaintiff has been so disabled since said time. Succinctly stated, the sole and only controversy here for your determination is whether continuously since said date of July 3, 1940, plaintiff is affected by disease, with total and permanent disability."

We find the fact of original disability was assumed by both parties. The sole issue pleaded, tried and submitted...