Bultralik v. Metropolitan Life Ins. Co.

• Decision Date: 20 July 1921
• Docket Number: No. 16526.,16526.
• Citation: 233 S.W. 250
• Parties: BULTRALIK v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

233 S.W. 250

BULTRALIK v. METROPOLITAN LIFE INS. CO.

No. 16526.

St. Louis Court of Appeals. Missouri.

July 20, 1921.

Appeal from St. Louis Circuit Court; Fred L. English, Judge.

"Not to be officially published."

Action by Frank Bultralik against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Fordyce, Holliday & White, of St. Louis, for appellant.

James J. O'Donohoe, of St. Louis, for respondent.

BRUERE, C.

This is an action on a policy of life insurance for $500. The policy was issued by the defendant insurance company, on the 14th day of May, 1915, upon the life of one lisrances Bultralik, plaintiff's wife, wherein the plaintiff is named as beneficiary. The insured died on. July 1, 1915.

The suit was commenced in a justice of the peace court, in the city of St. Louis, Mo., and transferred on appeal to the circuit court. The cause was tried before the court and jury and resulted in a verdict in favor of the plaintiff. From a judgment entered on the verdict the defendant prosecutes this appeal.

The plaintiff, to sustain his cause of action, introduced the policy sued upon, the admission of defendant that the premium thereunder was paid, and proved the death of the assured and defendant's refusal to pay the policy.

The defendant filed no answer in the case, but disclaimed all liability under said policy, on the ground of misrepresentation in the application concerning the health of the insured. To sustain its defense the defendant put in evidence the proofs of death furnished by the plaintiff to the defendant under the policy. Said proofs of death contained a statement, made by the plaintiff, wherein he stated that the insured died of diabetes and that the duration of her last illness was one year.

Attached to the proofs of death are the statements of Dr. Denison and Dr. Dern, who both treated the insured during her last illness. The statements are made up of questions and answers. The following appears in Dr. Denison's statement:

"Q. Cause of death? A. Diabetes.

"Q. How long had deceased been ill when you were called to attend? A. One year.

"Q. For what disease or diseases have you at any time attended deceased prior to last illness, and what was their duration? A. Nothing.

"Q. Was deceased afflicted with any infirmity, deformity, or chronic disease? If so, please specify. A. No.

"Q. Was deceased ever treated by any other physician or at any hospital or other institution prior to, during or subsequent to your attendance? If so, please specify. A. Don't know."

His statement further contains a certificate reciting that he attended the deceased from June 10, 1914, to July 1, 1915.

Dr. Dern's statement contains the following answers to the following questions:

"Q. Cause of death? A. Diabetes.

"Q. How long had deceased been ill when you were called to attend? A. More than one year.

"Q. For what disease or diseases have you at any time attended deceased prior to last illness, and what was their duration? A. None.

"Q. Was deceased afflicted with any infirmity, deformity, or chronic disease? If so, please specify. A. Yes. Diabetes.

"Q. Was deceased ever treated by any other physician or at any hospital or other institution prior to, during or subsequent to your attendance? If so, please specify. A. Yes, Hanneman Dispensary. Dr. Denison, Garfield Blvd."

Dr. Dern further stated therein that he attended deceased from June 30, 1915, to July 1, 1915.

Defendant also introduced in evidence a statement made by the plaintiff and attached to the proofs of death, filed with the defendant insurance company under another policy issued on the life of deceased. In this statement plaintiff also states that the cause of deceased's death was diabetes and that the duration of her last sickness was one year.

Dr. Denison also testified as a witness for the defendant. He testified that he had treated the deceased for diabetes, from September, 1914, up to the time of her death, and that in his opinion the disease was fatal when she first came to him for treatment. Several other witnesses testified for the defendant. Their testimony tended to prove that the deceased was sick and under medical treatment for about a year prior to her death.

Defendant put in evidence the application, dated May 12, 1915, for the policy in suit. In it the insured stated that she was in sound health and had never suffered from diabetes. In connection with and attached to this application the defendant also introduced the report of Dr. 0. H. Donaldson, its examining physician. Said report supports the statements made by the deceased in her application. Dr. Donaldson states therein that he examined the insured, on'said 12th day of May, 1915, and found her organs of respiration normal, her heart action uniform, her liver, stomach, intestines, blood vessels, and urinary organs free from disease, and that the insured was in sound health. The report concludes with a recommendation that said life be accepted at first-class rates. The report provides that lives accepted at first-class rates should be unexceptionable lives, and lives accepted at second-class rates should be lives in which the unfavorable circumstances are very slight.

Defendant admitted at the trial that no part of the proofs of death, except the signature, was in the handwriting of the plaintiff. Regarding said proofs of death, the plaintiff testified that he did not tell defendant's agent, who prepared them, that the insured had been ill for the duration of one year. Plaintiff further testified that he did not know what disease the insured died of and denied telling said agent that the insured had died of diabetes.

At the close of all the evidence the defendant asked a peremptory instruction in the nature of a demurrer to the evidence, which the court refused to give. Counsel for defendant earnestly urge that said instruction should have been given. They argue that plaintiff cannot recover in this suit because of the admissions against interest contained in the proofs of death made by plaintiff. They contend that these admissions stand uncontradicted and completely destroy plaintiff's prima fade case.

Admissions contained in the proofs of death, furnished by a beneficiary under a policy of insurance, are not to be regarded as conclusive against him, where there is evidence introduced, tending to show that they were erroneously made, or tending to explain, repel, or contradict them or tending to impair their force and effect.

It cannot be said that the...