Bailey v. American Life & Accident Ins. Co.

• Citation: 96 S.W.2d 903
• Decision Date: 06 October 1936
• Docket Number: No. 23972.,23972.
• Court: Missouri Court of Appeals
• Parties: BAILEY v. AMERICAN LIFE & ACCIDENT INS. CO.

96 S.W.2d 903

BAILEY v. AMERICAN LIFE & ACCIDENT INS. CO.

No. 23972.

St. Louis Court of Appeals. Missouri.

October 6, 1936.

As Modified on Denial of Rehearing October 20, 1936.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be published in State Reports."

Action by Dimple Bailey, alias Dimple Martin, against the American Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals.

Reversed, and cause remanded conditionally, in accordance with opinion.

Martin Farrow, of Springfield, for appellant.

Harvey V. Tucker, of St. Louis, Mo., for respondent.

BENNICK, Commissioner.

This is an action upon a policy of life insurance which was issued on August 12, 1929, by the now defunct First National Life Insurance Company of America, insuring the life of one Edward Martin in the principal sum of $500. Subsequently the policy was reinsured by the Mississippi Valley Life Insurance Company, and later, on May 20, 1932, it was again reinsured by the defendant herein, American Life & Accident Insurance Company.

The action is brought by plaintiff, Dimple Bailey, the beneficiary named under the policy, who was designated therein as Dimple Martin, the wife of the insured, though the fact was that she was not his wife, but was only living with him under the expectation of marriage.

The policy provided for a grace period of four weeks for all premium payments after the first, and also contained a reinstatement provision to the effect that, if the policy should become void in consequence of the nonpayment of premium, it might be reinstated upon payment of all premiums in arrears, subject to evidence of the insurability of the insured satisfactory to the company. A further condition of the policy was that it should not take effect if on its date the insured was not in sound health.

Premiums were paid regularly by the insured up to and including the month of October, 1931, but nothing was paid for the following seven months thereafter until in June, 1932, when an application for the revival of the policy was made to defendant, which had meanwhile taken over the business of the previous company under a reinsurance agreement which, while not obligating it to assume any liability on a policy on which there was a default in premium, nevertheless permitted it, upon evidence satisfactory to it of the health and insurability of the insured, to reinstate any monthly, ordinary, or industrial policy then in default for nonpayment of premium.

In his application the insured declared that he was then in good health; that he was suffering from no disease either acute or chronic; that since the lapse of his policy he had not been examined or treated by any physician; and that in asking a revival of his policy he understood that it would not be in force until the company should have approved his application, and should have evidenced its approval by the indorsement of the same on the policy.

Contemporaneous with the making of the application for the revival of his policy the insured executed his note for $7.98, representing the aggregate of the seven premiums in arrears on his policy, which sum was therewith charged as a lien against the same. At the same time defendant's soliciting agent executed a certificate to the company in which he recited that, in taking the application for revival of the policy, he had personally seen the insured, and that he had appeared to the agent to be in good health.

On June 20, 1932, the policy was revived by defendant, and thenceforth the insured paid his premiums up to and including the month of September, 1932. On August 18, 1932, the insured was taken to the Marine Hospital in the city of St. Louis, where he died on October 3, 1932, which was well within the grace period allowed for the payment of the October premium.

In due course plaintiff prepared and filed proofs of death, which disclosed that the insured had died from valvular heart disease and myocarditis, with syphilis as a remote or contributory cause. It happened, however, that such proofs purported to show that the insured's heart condition had existed for two years prior to his death, and because of that fact, which meant, if it was true, that the disease which caused his death had long antedated the time of the revival of his policy when he had represented to defendant that he was in good health, defendant denied all liability under the policy.

Action was thereafter begun in a justice's court, from which an appeal was taken to the circuit court, wherein there was a judgment for plaintiff, and against defendant, for the aggregate sum of $704.34, representing a finding for plaintiff for the principal sum of $500 due under the policy, with interest in the sum of $72.50 and an attorney's fee of $150, less the amount of the premiums tendered into court and the liens charged against the policy, totaling $18.16. Defendant's appeal to this court has followed in the usual course.

For its first point, defendant argues that the court should have peremptorily directed a verdict for it at the close of all the evidence upon the theory that the proofs of death filed by plaintiff had disclosed that the disease which brought about the death of the insured had not only existed at the time of, but in fact had long antedated, the revival or reinstatement of his policy. In other words, defendant is counting upon a material misrepresentation by the insured regarding the state of his health at the time he secured a revival of his policy, and it takes the position that the fact of such misrepresentation appeared in the case as a matter of law from the admissions contained in the proofs of death which were prepared and filed with it at the instance of plaintiff herself.

It is indeed well settled that admissions against interest contained in proofs of death furnished by a beneficiary will serve to preclude a recovery on the policy if the recitals in the proofs purport to show grounds for an avoidance of the policy and are permitted to go unexplained, unchallenged, and unaccounted for. However such statements or recitals are after all but prima facie only, and are consequently not to be taken as conclusive if other facts and circumstances appear in the case explanatory of or contradictory to the admissions. Burgess v. Pan-American Life Insurance Co. (Mo.Sup.) 230 S.W. 315; Kirk v. Metropolitan Life Insurance Co., 336 Mo. 765, 81 S.W.(2d) 333; Cope v. Central States Life Insurance Co. (Mo. App.) 56 S.W.(2d) 602; Rush v. Metropolitan Life Insurance Co. (Mo.App.) 63 S.W.(2d) 453.

The statements or admissions upon which defendant relies in this case are to be found in plaintiff's own individual certificate, as well as in that furnished by Dr. D. J. Prather, who, as the medical officer in charge of Marine Hospital, was the physician in attendance upon the insured during his last illness.

In plaintiff's own certificate, which constituted a part of the proofs of death, the following answers appeared: "12. When did health of deceased first begin to be affected? About 2 years ago. 13. Cause of death? Myocarditis. 14. How long had deceased had such disease? Don't know."

In Dr. Prather's certificate, which plaintiff adopted as her own by making use of it as a part of her proofs of death, the following appeared: "8. When did health of deceased first begin to be affected by the disease causing death? Two years according to patient's history. 9. Duration of last illness? Two years according to patient's history. * * * 10B. From history given you, when did deceased's health first begin to fail? Two years ago."

Now, if the proofs of death are to be accepted as disclosing, under plaintiff's own admissions, that the heart condition which ultimately brought about the insured's death had existed for two years prior thereto, then plaintiff would clearly not be entitled to recover, since the policy had been revived but little more than three months when the death of the insured occurred, and under such circumstances his representation in his revival application that he was then in good health and was suffering from no disease either acute or chronic would necessarily have been false and untrue. So the important question in the case is that of whether such admissions on plaintiff's part may be said to have been contradicted or explained by the other facts and circumstances in the case so as to have made the ultimate issue of the truth or falsity of the insured's representations one for the jury to determine, notwithstanding the admissions appearing in the proofs of death.

We think that the court committed no error in letting that issue be submitted to the jury.

So far as concerns the statements in plaintiff's own individual certificate, she testified that they were not made upon her own information, but solely in reliance upon information supplied by Dr. Prather at the Marine Hospital eleven days after the death of the insured. Plaintiff had given birth to a child the day preceding the insured's death and was, of course, but barely able to leave her bed, and, in order to safeguard her own health, had remained outside the hospital in an automobile while the undertaker, who was accompanying plaintiff, had gone inside to have the blanks filled out by Dr. Prather. So it was that, even though plaintiff did sign and submit the certificate showing that the insured's health had been affected for two years preceding his death, the fact that her statements were founded purely upon the statements of some one else rendered them not conclusive against her, and left the question of their weight and value to be determined by the jury. Mayhew v. Travelers' Protective Ass'n (Mo.App.) 52 S.W. (2d) 29; Dickey v. Supreme Tribe of Ben Hur (Mo.App.) 253 S.W. 417; Grey v. Independent Order of Foresters (Mo.App.) 196 S.W. 779.

Moreover, when asked specifically to state the duration of the myocarditis which had caused the insured's death, plaintiff's...