Bouligny v. Metropolitan Life Ins. Co.

• Decision Date: 04 April 1944
• Docket Number: No. 26584.,26584.
• Citation: 179 S.W.2d 109
• Parties: BOULIGNY v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

179 S.W.2d 109

BOULIGNY v. METROPOLITAN LIFE INS. CO.

No. 26584.

St. Louis Court of Appeals. Missouri.

April 4, 1944.

Rehearing Denied April 21, 1944.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action by Edmond L. Bouligny against Metropolitan Life Insurance Company upon a policy of industrial life insurance. From a judgment for plaintiff, defendant appeals.

Reversed and remanded conditionally.

Fordyce, White, Mayne, Williams & Hartman and F. W. Schwarz, all of St. Louis (Harry Cole Bates, of New York City, of counsel), for appellant.

Charles A. Lich and John P. Griffin, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action upon a policy of industrial insurance issued upon the life of Estelle Bouligny, who died on August 22, 1936, from the effects of multiple liver abscesses and acute obstructive hepatitis, with toxicosis from jaundice. The policy was made payable to the executor or administrator of the insured; and the husband brings this action by virtue of an order refusing letters of administration upon the estate of his deceased wife.

Originating in a justice's court, the case went on appeal to the circuit court, and has already been before this court on two previous occasions.

On the first appeal, a judgment for plaintiff was reversed and the cause remanded because of the error of plaintiff's principal instruction in basing the right of recovery, not upon the insured's sound health at the date of the issuance of the policy, but instead upon the findings of defendant's medical examiner. Bouligny v. Metropolitan Life Insurance Co., Mo.App., 133 S.W.2d 1094.

On the second appeal, a judgment for plaintiff was reversed and the cause remanded because of the error of one of plaintiff's instructions in directing the jury that even though they might find that the insured was not in sound health at the date of the issuance of the policy, if they further found that defendant, through its agent, thereafter knew that she was ill and in a hospital and continued to collect the premiums on the policy, then in that event it waived the sound health provision of the policy, and such provision would constitute no defense to plaintiff's action. Bouligny v. Metropolitan Life Insurance Co., Mo.App., 160 S.W.2d 474.

Following the last reversal, the case was again tried to a jury, and resulted in a verdict in favor of plaintiff, and against defendant, for the aggregate amount of $804.73, comprising items of $270, the face amount of the policy; $107.73 as interest; $27 as damages for vexatious refusal to pay; and $400 as an attorney's fee. Judgment was rendered in accordance with the verdict; and defendant has again appealed to this court, where it urges but the single point that for the want of evidence of vexatious refusal, the court erred in submitting that issue by plaintiff's instruction No. 2.

Among the conditions of the policy were provisions that if the insured was not in sound health on the date of the issuance of the policy, or if, within two years before the date of issuance, he had been attended by a physician for any serious disease or complaint, or if, before said date, he had had, among other things, any disease of the liver, then in any such case the company might declare the policy void, and the liability of the company in the case of any such declaration, or in the case of any claim under the policy, should be limited to the return of the premiums paid on the policy.

The insured in this case made application for the policy on December 14, 1935, and at that time represented that she had never had any disease of the liver; had not been under treatment at any clinic, dispensary, or hospital within five years; had not been under the care of a physician within three years; and was then in sound health. She further declared that all such statements were true and complete, and agreed that any misrepresentation should render the policy void, and that the policy should not be binding upon the company unless, upon its date, she was alive and in sound health.

Accompanying the application was the soliciting agent's personal report, which showed that the insured, contrary to her own representation, had allegedly last received medical treatment in May, 1935, for a "nervous spell" from which she had fully recovered after an illness of three weeks' duration. Evidently because of this information the company asked for a medical examination, and had the insured examined by Dr. L. H. Crapp, one of its medical examiners, who found that she was in good health, so far as his examination disclosed, and recommended that her application be accepted.

The policy was issued on February 24, 1936, and only two months later, or on April 27th, to be exact, the insured entered St. John's Hospital, in the City of St. Louis, where her physicians made a diagnosis of multiple liver abscesses and acute obstructive hepatitis. On July 6th she was discharged, and on August 3rd readmitted to the hospital, where she died on August 22nd, as has already appeared at the outset of the opinion.

In due time plaintiff began the preparation of proofs of death; and on September 4, 1936, executed a statement addressed to the superintendent of any institution where the insured had been treated, and requesting that the bearer of the statement, who was defendant's soliciting agent, be permitted to make or obtain a copy, in whole or in part, of any records concerning the insured. In the course of the statement, and by way of showing the purpose for which the records were to be used, plaintiff set out that he was claiming the proceeds of the policy in suit; and he concluded by authorizing the bearer, on his behalf, to submit the copies of the hospital records directly to the insurance company.

In the records of St. John's Hospital it was shown that the...