Chambers v. Metropolitan Life Ins. Co.

• Decision Date: 29 January 1940
• Parties: REYNOLDS CHAMBERS AND JAMES D. POUNCEY, RESPONDENTS, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

138 S.W.2d 29

235 Mo.App. 884

REYNOLDS CHAMBERS AND JAMES D. POUNCEY, RESPONDENTS, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

January 29, 1940

[Copyrighted Material Omitted]

Appeal from Circuit Court of Jackson County.--Hon. Ben Terte, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

William C. Michaels, Kenneth E. Midgley and Ralph M. Jones for appellant.

Harry Cole Bates and Michaels, Blackmar, Newkirk, Eager & Swanson of Counsel.

(1) Under the law of Kansas, which governs the case misrepresentations in an application for reinstatement as to condition of health and treatment by a physician are material and avoid the reinstatement regardless of whether the illness for which he was receiving treatment actually contributed to his death or not. Savannah Brown v. Metropolitan Life Ins. Co., 146 Kan. 300, 69 P.2d 1110; Klein v. Farmers & Bankers Life Ins. Co., 132 Kan. 748, 297 P. 730; Scott v. National Reserve Life Ins. Co., 144 Kan. 224, 58 P.2d 1131. (2) The attempted proof of the execution of the assignment to plaintiff was based solely on hearsay testimony that the beneficiary had told the witness that she had signed it. Such proof being improper, plaintiffs failed to show any right to maintain the action. Zaring v. Bauman (Mo. App.), 223 S.W. 947; Chouteau v. Searcy, 8 Mo. 526; Fougue v. Burgess, 71 Mo. 389; Howell v. Howell, 37 Mo. 124; Truesdail v. Sanderson, 33 Mo. 532. (3) The allegations of defendant's answer that the purported assignment on which plaintiffs based their cause of action was without consideration and void, and that the plaintiffs were not the real parties in interest, were issuable allegations, and error was committed in excluding evidence thereon. Nanson v. Jacob, 93 Mo. 331, 6 S.W. 246.

Harry A. Hall and James D. Pouncey for respondents.

(1) The alleged misrepresentations in the reinstatement application constitute no defense to plaintiffs' claim. (a) The statements were made by the defendant's agent and not by the insured. Sappington v. Central Mutual Ins. Co., 77 S.W.2d 140; Yancey v. Central Mutual Ins. Co., 77 S.W.2d 149; Doran v. Ins. Co., 116 S.W.2d 172. (b) The matters misrepresented were not material and did not contribute to Mason's death. G. S. Kansas 1935, sec. 40-418; National Reserve Life v. Humphrey, 55 P.2d 296, 145 Kan. 373; DeValpine v. New York Life Ins. Co., 105 S.W.2d 977; Doran v. John Hancock Ins. Co., 116 S.W.2d 172; Day v. National Res. Life, 144 Kan. 618; Sharrer v. Capital Ins. Co., 102 Kan. 650; Northwestern Mutual v. Woods, 54 Kan. 663. (c) Dr. Zimmer, being Mason's attending physician, was not competent to testify to information obtained by him in his professional treatment of Mason, nor was his medical report obtained by defendant's agent admissible in evidence. R. S. Mo. 1929, sec. 1731; Frazier v. Met. Life Ins. Co., 141 S.W. 936; Hicks v. Met. Life Ins. Co., 190 S.W. 661; Masson v. Met. Life Ins. Co., 36 S.W.2d 118; Anderson v. Washington Natl. Ins. Co., 93 S.W.2d 1045. (2) Plaintiffs were proper parties plaintiff, under the assignment, and there was no error in refusing to permit defendant to go into the matter of the consideration for it. Schepman v. Mutual Ben. Ins. Co., 104 S.W.2d 777; Guerney v. Moore, 32 S.W. 1132; Hartman v. Owen, 240 S.W. 113; Springfield ex rel. v. Weaver, 137 Mo. 650; Coffman v. Saline Valley R. R., 183 Mo.App. 622, 167 S.W. 1053.

OPINION

BLAND, J.

This is a suit on a policy of endowment insurance. Plaintiffs are the assignees of the beneficiary under the policy. There was a verdict and judgment in favor of plaintiffs in the sum of $ 4302.56. Defendant has appealed.

The facts show that on the 23rd day of July, 1924, in the State of Kansas, defendant issued to one, Albert L. Mason, the policy in question, agreeing to pay $ 5000 to the insured, if living, on the 23rd day of July, 1971, or, to Gertrude Mason, his wife, as beneficiary, "upon receipt of due proof of the prior death of insured." The policy further provided: "This policy shall be incontestable after it has been in force for a period of two years from its date of issue, except for nonpayment of premiums. . . . This policy and the application therefor constitute the entire contract between the parties, and all statements made by insured, shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid this Policy or be used in defense of a claim hereunder unless it be contained in the application therefor and a copy of such application is attached to this Policy when issued. . . . If this policy shall lapse in consequence of default in payment of any premiums, it may be reinstated at any time . . . upon the production of evidence of insurability satisfactory to the Company and the payment of all overdue premiums with interest at six per centum to the date of reinstatement." [See also Gen. Stat. Kan. 1935, section 40-420, requiring such provisions to be inserted in policies issued or delivered in Kansas.]

On the 26th day of January, 1936, the policy lapsed for nonpayment of premiums and was placed by the company on "paid up insurance." on May 2, 1936, insured applied for reinstatement of the policy upon a reinstatement blank furnished by the company. The application for reinstatement contained the following questions and answers, among others, made by him: "3. Are you now in sound health? Yes. 5. Have you since date of issue of the above policy (a) Had any illness or injury? If yes, give date and particulars: (a) No. (b) Consulted any physician or physicians? If yes, give date, and name and address of physician or physicians, and state for what illness or ailment. (b) No." There were questions relating to flying in aircraft and other matters, which are not material here. However, there appeared the following language in the application:

"Application is hereby made for the reinstatement of the above policy which lapsed for nonpayment of premium due as stated above. I hereby certify that the foregoing statements and answers are correct and wholly true and have been made by me to induce the Metropolitan Life Insurance Company to reinstate the above policy, and I agree that if said company shall grant such reinstatement the same shall be deemed to be based exclusively upon the representations contained in this request and upon the express condition that if the foregoing statements be in any respect untrue said company shall, for a period of two years, from the date of such reinstatement, be under no liability by reason of the attempted reinstatement of the policy, except that the company shall return to the insured or his personal representative all premiums paid since the date of said reinstatement."

Insured died on April 6, 1937.

The policy was reinstated upon this application. That part of the proofs of death signed by the beneficiary mentioned Dr. Zimmer, Lawrence, Kansas, as one of the physicians who had attended deceased during his last illness and for three years prior thereto. The physician's statement, attached to the proofs of death, signed by Dr. Zimmer, contains, among other things, the following: "Q. Give particulars of each condition for which you treated or advised deceased prior to last illness: Nature of condition: Gonorrhea. Date: 3-1-36. Duration: to October, 1936. Result: cured."

Dr. Zimmer, testifying as a witness for defendant, over the objection of plaintiffs, stated that insured came to him on February 29, 1936, at which time he found insured was suffering from gonorrhea; that he treated him for this ailment every three days during March and April; that he treated him seven times in March and three times in April; that he finally discharged insured as cured, in October, 1936; that he treated him intermittently from February 29, 1936, until October of the same year; that he told insured the latter was suffering from gonorrhea on the occasion of the latter's first visit; that on April 20, 1936, insured did not have any discharge and he told him "I hoped that was the end of it. I did not say he was all right, because nobody treating gonorrhea would make a statement of that kind. The patient should be kept under observation, but I believe I did say when I discharged him that I hoped that was the end of it. . . . I told him to come back because while he had no more discharge we don't let a patient go then, we keep them under observation because recurrences happen very frequently, and we think it is not good practice to just let a patient go;" that on April 25, 1936, he treated insured for a stricture of the urethra, but the witness was of the opinion that this stricture was not due to the recent gonorrhea infection but was due to an "old inflammation or infection;" that deceased came back at certain intervals for treatments for the stricture; that stricture is not regarded as a serious disease or illness; that on August 21, 1936, a discharge again appeared and, upon an examination, the doctor found insured to be suffering from gonorrhea; that: "Of course, it might have been a reinfection, but I don't think that;" that on April 20th, when the doctor stated to insured that he hoped that was the end of insured's trouble, he was of the opinion that "it was not an unusual case. There wasn't any--I wouldn't say either light or severe, moderate, I would say."

The witness further testified that in medicine gonorrhea is not considered serious; "the primary infection is not regarded as serious. It is the after effects or the complications of gonorrhea which can become very serious. Q. And those after effects or complications are not apt to occur if it is taken care of at its inception, is that right doctor? A. If it is...