American Life Ins. Co. v. Walker

• Decision Date: 31 December 1949
• Docket Number: No. 37325,37325
• Citation: 208 Miss. 1,43 So.2d 657
• Parties: AMERICAN LIFE INS. CO. v. WALKER.
• Court: Mississippi Supreme Court

Page 657

43 So.2d 657

208 Miss. 1

AMERICAN LIFE INS. CO. v. WALKER.

No. 37325.

Supreme Court of Mississippi, in Banc.

Dec. 31, 1949.

O. F. & J. O. Moss, Lucedale, for appellant.

Wm. S. Murphy, Lucedale, for appellee.

SMITH, Justice.

Appellant, under a hospitalization policy, dated May 1, 1948, insured appellee against 'financial loss due to hospital residence, surgical operations and certain other expenses * * * (b) resulting from sickness which is contracted while this policy is in force, herein called 'such sickness' * * *'. The policy contains, among General Provisions, this further condition upon right to indemnity thereunder: '2. The provisions of this policy * * * shall not take effect * * * unless this policy has been received by the appellant while all the Insured are in good health and free from injury.'

The policy was received on or about May 7th or 8th, 1948. Appellee having found it necessary to enter a hospital, on advice of her physician, did so on July 7, 1948, where she remained for approximately twelve days, and undergoing an operation for gall bladder trouble. She filed claim for the indemnity under the policy schedule, with due proof as required, which the appellant refused to pay.

Appellee thereupon filed suit in the court of a justice of the peace and recovered judgment for the full amount claimed, $191. Appellant appealed to the circuit court, where the case was tried de novo, and resulted in a peremptory instruction to the jury to find for plaintiff in the amount of $181. Appellant's motion for a peremptory instruction in its behalf was overruled. The latter appealed here.

The case having originated in the court of a justice of the peace, although appellee filed a declaration, appellant filed no pleas. Its defense, however, was that appellee's claim was not within the terms of the policy because she was not in good health at the time she received it on May 7, 1948, for the reason that her ailment, cholicystitis, or gall bladder trouble, for which she was operated upon, 'pre-existed' the issuance of the policy--in order words, was not contracted 'while this policy is in force.' In the circuit court trial, another issue arose, dealing with an assignment of her alleged rights under the policy of her husband, which we will reach later in this opinion.

Decision on the merits of appellant's defense as to the facts, and their relation to the policy provisions, supra, require a summary of the evidence. In her testimony, the appellee, Mrs. Dela Lee Walker, testified that she went to the hospital on July 7, 1948, for gall bladder removal, stating that to her knowledge she had never had it before, and no one had ever told her she had gall bladder trouble prior to the issuance of the policy. On cross-examination, she admitted she had been under the care of her physician, Dr. Benson, for a number of months in 1947 for a chronic arthritic condition, from about April to December. She had also undergone a pelvic operation some years previously.

She, in connection with the proof of her claim for indemnity when submitted to appellant insurance company, had consented for her physician, Dr. Benson, and the operating surgeon, Dr. Thompson, to furnish her case history and diagnosis of her trouble, which required hospitalization. This document revealed that her trouble was chronic cholecystitis, with pain 'in it hypochondrium region'; and that her past 'medical History pertaining to this disability was characterized by attacks of epigastive pain--repeat stomach and excessive gas--and indigestion'. The statement, however, was further to the effect that she had had no chronic or constitutional disease, and that the operation performed in the Jackson County Hospital was a Cholecystectomy. In contradiction to a part of the foregoing statements, however, the case history concluded with the statement that the doctors' final diagnosis of her case was chronic Cholecystitis.

Dr. Thompson, the surgeon, did not testify, but Dr. Benson, the physician, was introduced as a witness for the plaintiff. He testified that he examined appellee about June 15th, at her home and he found her suffering severe pain in the upper part of her abdomen. He gave her a sedative, and kept her under observation for a few days, when he gained the impression appellee was suffering from 'acute cholecystitis'. It is here to be borne in mind, the case history contained the final diagnosis as chronic Cholecystitis. However, she was hospitalized on his advice, her condition diagnosed as gall bladder trouble, and the operation was performed. Dr. Benson further testified he treated appellee in April 1947 for a back trouble, and in the early part of 1948, and nothing at that time had any reference to gall bladder conditions, the first indications of which appeared in the following June.

On cross-examination, the doctor stated that appellee had a chronic condition, sacro illiac, from April 1947 until early in 1948, being continuously under his care. He said: 'It was the 15th of May, 1948, with reference to gall bladder trouble,' although as shown, supra, he stated that he first examined appellee on June 15th, which discrepancy he attributed to some confusion as to dates. However, both dates were later than that of the receipt of the policy, May 7th or 8th. However, since it is clear that the hospitalization began on July 7th, a short while after the diagnosis, Dr. Benson's fixation of it on June 15th was the correct date.

In the circuit court, the plaintiff then rested her case, and appellant moved the court for a peremptory instruction, for the reason that the policy and all her rights under it had been assigned by appellee to her husband, who was not a party to the suit. It is uncontroverted that such assignment had been made. Immediately, appellee moved the court for leave to reopen her case, which, over objection by appellant, was permitted. The husband, Mr. T. L. Walker, was then put on the stand and stated that he authorized appellee to bring the suit in her name, and he waived all his rights under the assignment, and whatever was recovered in the suit, with his consent, would go to his wife for the benefit of her hospital. After this testimony was concluded, appellant renewed its...