MERCANTILE-COMMERCE B. & T. CO. v. EQUITABLE LIFE A. SOC.

• Decision Date: 08 March 1945
• Docket Number: No. 699.,699.
• Parties: MERCANTILE-COMMERCE BANK & TRUST CO. et al. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: U.S. District Court — Eastern District of Missouri

59 F. Supp. 787

MERCANTILE-COMMERCE BANK & TRUST CO. et al. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 699.

District Court, E. D. Missouri, E. D.

March 8, 1945.

Cobbs, Logan, Roos & Armstrong, and William H. Armstrong, all of St. Louis, Mo., for plaintiff.

Jones Hocker, Gladney & Grand, James C. Jones, Jr., and Orville Richardson, all of St. Louis, Mo., for defendant.

HULEN, District Judge.

This action (on jury waived trial) to recover disability benefits and return of premiums on life policy, is before this court for the second time. On the first trial judgment went for plaintiff. D.C., 48 F. Supp. 561. On appeal, the finding of the trial court that the "insured was totally and permanently disabled" during the period in question was affirmed, but the case was remanded for "findings, conclusions, and judgment as to the sufficiency of the proof of loss," of the claimed "continuous" disability extending through the period involved, with the right to either party to introduce additional evidence "directed to this matter." The period involved is from March, 1932, to April, 1939.

We understand plaintiff's position to be that the record as now made evidences due proof of total and permanent disability to cover the period involved: first, that defendant knew of the insured's heart condition as early as 1920 and that the heart ailment was a permanent condition; that defendant knew of the progressive character downward of the disease when it received and paid the claim for disability on account thereof, commencing in 1930; that from the information in the possession of the defendant at that time, the probable deduction to be drawn was that the insured would thereafter for life be totally and permanently disabled; that his condition would not improve; that no change in such knowledge resulted thereafter; and that defendant's agents were aware of insured's condition during the period involved; and, second, that defendant accepted the documents tendered by the insured in 1930 as due proof of the insured's total and permanent disability.

As to plaintiff's first position, the following facts appear from the record now before this court: In November, 1920, the insured sought insurance from the company. He was examined by the company's "medical referee." Because of his physical condition, the company was "unable to consider — applicant for insurance on any plan." The insured at that time had a heart beat of "thirty-four" as compared to a normal of around seventy. In the fall of 1921, the insured applied for the two policies in suit. In the application, under heading "Have you ever had or been treated for any disease or disturbance of: * * (c) the heart or blood vessels," the insured entered the words "except slow pulse." Insured's pulse at that time was thirty-six. The policies were issued, but because of the insured's heart condition, he was rated as a sub-normal risk, and the policy premium rated up. On February 6, 1925, insured again applied to the company for insurance and called attention to "slow pulse." At that time insured was examined by the company's home office medical director. Insured's pulse at that time was thirty-eight. A heart chart was obtained. For the first time, evidence was found of a systolic murmur. There was some delay in issuing the policy, and insured was again examined on May 22, 1925. At this time his pulse rate was forty. The policy was issued on a sub-standard risk basis, and rated up on the same premium as the policy issued in 1921. In December of 1925, the insured applied for a reduction in rates on the policies which the company had issued to him. He was examined in December of 1925, at which time his pulse rate was forty-four. He was examined by the company on January 4, 1926, which confirmed the systolic murmur first found in February of the previous year. Following these examinations, the company reduced the rates on insured's policies to a "Q" rating — still not standard. In December of 1926, insured again applied for insurance in the company and certain policies were issued after physical examination. The rate on these policies was advanced to "R". This was subsequently reduced to a "Q" rating. Slow pulse and systolic murmur were the only abnormal conditions reported by the examining physicians between 1920 and 1930. In May of 1930, the insured suffered "Stokes-Adams" attacks. There was evidence that this is indicative of a permanent and serious heart ailment associated with and a probable result of heart block. Stokes-Adams disease is usually associated with senile degenerative change of the heart and vascular system and is stated to be due to impairment of conductivity in the muscular fibres (bundle of His) which transmit the wave of contraction from auricle to the ventricle of the heart. At this time the insured was confined to a hospital and later to his home. On October 23, 1930, on blanks furnished by the company, the insured applied for blanks for making proofs of total and permanent disability on the policies issued by the company in 1921 (other policies issued by the company are not involved in this case). This application was filled in by the company's representative, and in answer to the printed question, "The insured expects to return to work on ____," the word "indefinite" was written. The nature of the illness or disease is given as "heart block." On October 25, 1930, the insured filed disability claim on form furnished by the company. Portions of this claim are: "Date you expect to resume some business duties." The answer is "Have no idea." The form furnished by the company concludes as follows: "12. On the 29th day of May, 1930, I became wholly disabled as a result of heart trouble and have been continuously and wholly prevented thereby from pursuing any and all gainful occupations and by reason of such disability I now make claim for the protection in the event of total and permanent disability as provided in the said policy."

The affidavit of two attending physicians accompanied the claim (Defendant's Exhibits 3 and 4). Exhibit 3 is the affidavit of Dr. Taussig. Answer to the question: "What history of previous illness was given to you by insured?" is, "History of long continued heart block." The question, "Has the claimant any other disease, acute or chronic, or has claimant ever had any infirmity or injury?" is answered, "Only as above," referring to "History of long continued heart block." The question: "Is he able to pursue his or any other gainful occupation?" is answered "No." The time of such disability is given as "Since early in May, 1930." The claim blank contains this question, "How soon in your opinion will he be able to resume any business — approximate date." The answer is, "Do not know." Questions and answers 11, 12, and 13 of the claim blank are as follows:

"11. Describe fully, Diagnosis and symptoms of injury, infirmity or disease causing present disability, with brief description of Physical Findings. — ^*Symptomless heart block for many years. In May, 1930 a sino-auricular block set in with long periods of asystole and Adams-Stokes syndrome.

"12. Results of special examinations, laboratory tests and X-rays. a. Repeated EKG b. When were the above examinations made? During June, 1930

"13. a. Do you believe that the claimant is so disabled and that he is wholly prevented from pursuing any and all gainful occupations? Yes b. Is this total disability only temporary? ^*Probably. c. Is it possible that he will be prevented for life from following ANY occupation? Possibly."

Exhibit 4 is the affidavit of Dr. Smith. Dr. Smith stated that the insured was not able "to pursue his or any other gainful occupation," "since early in May, 1930." In answer to question as to how soon the insured would be "able to resume any business," the answer of Dr. Smith was the same as Dr. Taussig — "Do not know." In answer to the question, "Is claimant's condition growing worse?" Dr. Smith answered, "?Has myocarditis." Dr. Smith's answers to paragraphs 11, 12 and 13 of the affidavit form furnished by the company differ from those of Dr. Taussig. The questions and answers are as follows:

"11. Describe fully, Diagnosis and symptoms of injury infirmity or disease causing present disability, with brief description of Physical Findings. Patient had heart rate 36 to 44 for about 12 years, was comfortable. During 1930 developed arhythmia. Rate went to 60 and 80 and would change suddenly. Patient would almost faint. Electro cardiogram showed eleven seconds of asystole.

"12. Results of special examinations, laboratory tests and X-rays. a. Repeated electrocardiographic tracing. b. When were the above examinations made? June, 1930, at Jewish Hospital, St. Louis.

"13. Do you believe that the claimant is so disabled and that he is wholly prevented from pursuing any and all gainful occupations. Yes. b. Is this total disability only temporary? Don't know. c. Is it possible that he will be prevented for life from following ANY occupation? Yes."

The company asked for no clarification of the answers of the doctors to questions in forms supplied by it, and paid total and permanent benefits (less the first ninety days, which deductions were protested by the insured) until March of 1932, when the insured wrote the company a letter containing the following paragraph: "I wish to advise you that I am back at my desk for short periods each day. I hope to regain my strength sufficiently to be able to continue at work and unless you hear from me to the contrary before the end of the month, you need not send the checks on the above claims."

Marshall W. Bradley, a representative of the company, visited the insured during the period of 1930 to 1932. He testified: "When I learned of Mr. Comfort's illness, I considered it my duty as a representative of Equitable to facilitate and help Mr. Comfort in every way to establish his claim. I did just that."

After Mr. Comfort went back...