Allen v. American Life & Accident Ins. Co.

• Decision Date: 04 June 1935
• Docket Number: No. 22721.,22721.
• Citation: 83 S.W.2d 192
• Court: Missouri Court of Appeals
• Parties: ALLEN v. AMERICAN LIFE & ACCIDENT INS. CO., Inc.

83 S.W.2d 192

ALLEN v. AMERICAN LIFE & ACCIDENT INS. CO., Inc.

No. 22721.

St. Louis Court of Appeals. Missouri.

June 4, 1935.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

Suit by Thomas Allen against the American Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Stephen Barton, of Benton, for appellant.

Ray B. Lucas, of Benton, for respondent.

HOSTETTER, Presiding Judge.

This suit was instituted on November 30, 1932, in the circuit court of Scott county and was removed by change of venue to the circuit court of Cape Girardeau county, where it was tried on January 13, 1933.

The plaintiff is the widower of Ola Allen, and beneficiary in a $500 policy of insurance on her life, originally issued on December 8, 1930, by the First National Life Insurance Company of America, which later sold its business to the defendant corporation, which assumed liability for all claims arising under its policies.

Premiums of $1.64 per month were regularly paid on the insurance policy until default was made on December 8, 1931, and continued delinquent until April 15, 1932, when the five delinquent premiums were all paid up and the insured, Ola Allen, signed an application for a revival of said policy, which contained a clause to the effect that she was then in good health and had not been attended by any physician in regard to her health since the lapse of the policy.

Thereafter, on May 10, 1932, she became sick and confined to her bed, and was subsequently removed to the Southeast Missouri Hospital at Cape Girardeau, where she died on June 14, 1932, from cancer of the uterus, according to the testimony of the attending physician.

The defense urged in support of non-liability on the reinstated policy was based on the provisions of said policy requiring evidence of the insurability of the insured at the time of the reinstatement, satisfactory to the company; it being averred that the answer made by her in respect to her being in good health at the time she signed the application was not true, but that she was in bad health, and died of the illness from which she was suffering at the time she signed the application for revival on April 15, 1932.

By reply the plaintiff denied that the insured was in bad health at the time the policy was reinstated, and denied further that insured died of any illness from which she was suffering at the time she signed the application for revival.

Under the pleadings and the admissions, the sole issue for the determination of the jury was whether the insured was afflicted with the disease of carcinoma of the uterus at the time she signed the application for revival on April 15, 1932, and whether it actually contributed to her death.

The defendant called Dr. O. L. Seabaugh, who treated the insured at the hospital during the last thirty-six hours of her life, and he testified that he had never seen her or treated her theretofore, and further testified that she died from cancer of the uterus, and that in his opinion it would take a year or more for such disease to produce death, and that he did not think it possible for a person to contract such disease and die from it within two months thereafter. Dr. Seabaugh's affidavit as the attending physician, which became a part of the proofs of death furnished by plaintiff, contained the statement that the cause of her death was carcinoma uterus, which, in common parlance, is cancer of the uterus, and also that the duration of her last illness was one year.

Dr. D. G. Sibert, a practicing physician of Jackson, Mo., was also called as a witness by defendant, and gave similar testimony to that given by Dr. Seabaugh as to the duration of such disease before causing the death of a person afflicted therewith.

Thereafter, plaintiff called a number of lay witnesses who testified, in substance, of an acquaintance with the insured for many years, and that on April 15, 1932, immediately prior and subsequent thereto, she did her housework and appeared to be in normal health and unaffected with any disease, and that she did not complain of being sick before May 10, 1932.

The jury returned a verdict for $515 in favor of plaintiff, but decided in favor of defendant on the question of vexatious delay, and a judgment thereon was rendered. Defendant duly appealed, and brings the cause to this court for review.

Defendant urges as its first assignment of error that the trial court should have given its instruction in the nature of a demurrer to the evidence; and argues in support thereof that the opinions of laymen could not overcome the statements in the physician's certificate which was filed with the proofs of death, and that the testimony of medical witnesses who were versed in diseases was conclusive.

The burden of proof rested on defendant, and we cannot agree to this contention. While the testimony of physicians should carry great weight covering matters about which they are especially qualified to testify, such testimony is by no means conclusive. The testimony of lay witnesses as to the apparent good health and soundness of the insured at the time she signed the application for revival has some evidentiary strength. This view is supported by the following cases: Wollums v. Mutual Benefit Health & Accident Ass'n, 226 Mo. App. 647, 46 S.W.(2d) 259, loc. cit. 268; Johnson v. Missouri Insurance Co. (Mo. App.) 46 S.W.(2d) 959; Haney v. Security Benefit Ass'n, 225...