Cohen v. Metropolitan Life Ins. Co.
| Decision Date | 15 July 1969 |
| Docket Number | No. 33235,33235 |
| Parties | Lillian K. COHEN et al., Plaintiffs-Respondents, v. METROPOLITAN LIFE INSURANCE COMPANY, a Corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Fordyce, Mayne, Hartman, Renard & Stribling, P. Terence Crebs, St. Louis, for defendant-appellant.
Husch, Eppenberger, Donohue, Elson & Cornfeld, Donald W. Bird, Francis M. Oates, St. Louis, for plaintiffs-respondents.
This is a suit by plaintiff-insured to recover certain hospital and medical expenses from defendant-insurer, under a Family Comprehensive Medical Expense Policy; also for statutory damages for vexatious refusal to pay, and for attorney's fees. The cause, tried to the court, resulted in a judgment for plaintiff and against defendant in the sum of One Thousand Two Hundred and Seventy-nine Dillars and Seventy-five Cents ($1,279.75) plus ten per cent (10%) penalty in the sum of One Hundred and Twenty-seven Dollars and Ninety-eight Cents ($127.98) plus interest from April 1, 1966, to date of judgment, together with attorney's fees in the amount of One Thousand Five Hundred Dollars ($1,500.00). The trial court entered judgment for plaintiff on plaintiff's petition and against defendant on the latter's counterclaim for rescission. Defendant appeals from the judgment of the trial court.
Defendant's answer denied liability and affirmatively pleaded plaintiff in her application for insurance made misrepresentations and fraudulent statements with respect to prior treatment by a physician and also as to prior bodily or mental disease or disorder. Defendant counterclaimed for rescission of the insurance contract on the grounds plaintiff in her application for insurance, on which defendant relied, made fraudulent misrepresentations that she had not been treated by a physician within the previous five years and had never ahd mental disease or disorder, all with the intention to deceive defendant.
We are first confronted with respondent-plaintiff's motion to dismiss for failure to comply with Supreme Court Rule 83.05, V.A.M.R., with respect to jurisdictional statement, statement of facts and 'Points relied on'. We rule timely appeal was taken from judgment entered on December 28, 1967. We further rule the statement of facts not so flagrantly deficient as to call for a penalty of dismissal, as respondent in its reply brief substantially corrected the omissions complained of. Tener v. Hill, Mo.App., 394 S.W.2d 425. Finally, we rule appellant's specifications of his points of error sufficient to enable the respondent to answer appellant's contentions and sufficient to enable this court to determine with reasonable certainty and effort what the issues on appeal are and what the appellant's position thereto is under Supreme Court Rule 83.05(e), V.A.M.R. Yates v. White River Valley Elec. Coop., Mo.App., 414 S.W.2d 808. We will consider this appeal on its merits.
Certain facts were well established in this case. On or about March 16, 1964, plaintiff-respondent hereinafter referred to as plaintiff, applied for and on March 26, 1964, defendant-appellant, hereinafter referred to as defendant, issued its Comprehensive Medical Expense Policy to plaintiff for family protection for plaintiff and her two minor sons, Larry M. Cohen (an adopted son) and Kenneth G. Cohen. Plaintiff signed the insurance application. Question 11 on the application asked whether the applicant or her family members within the preceding five years had any treatment, examination or advice by a physician. Question 13 asked whether the applicant or any family member ever had 'so far as you know' any mental disease, disorder or impairment not mentioned in Question 11. Defendant's agent who accepted the application wrote the answer 'No' to Questions 11 and 13. Plaintiff signed the application 'as true and complete * * * as they applied to me personally'. The policy was in full force from March 26, 1964, to March 26, 1966. Plaintiff's adopted son, Larry Cohen, was hospitalized from May 19, 1965, through August 16, 1965, and her son Kenneth was hospitalized from March 3 to March 5, 1966. On February 7, 1966, by letter, defendant notified plaintiff, with respect to claims submitted for hospitalization of Larry and Kenneth Cohen, that medical reports received by defendant indicated plaintiff had consulted her doctor because of a chronic nervous disorder on thirty occasions in 1959, forty-eight occasions in 1960, and thirty-six occasions in 1961; in the letter the defendant advised it was considering the policy void as of the date of issue, for the reason plaintiff's application did not include this information. Defendant enclosed in its letter to plaintiff a return of all premiums paid in the amount of Three Hundred and Ninety Dollars and Twelve Cents ($390.12). Dr. George Benson, treating physician of plaintiff in 1959, 1960 and 1961, diagnosed plaintiff as 'chronic psycho-neurotic depression in a schizoid character--findings were typical of depression with some psychotic overtones'. On May 20, 1965, defendant received notification from the hospital with respect to Larry Cohen's claim against defendant for hospital benefits. Defendant first received information concerning plaintiff's prior medical history on January 25, 1966, from a copy of a written summary of Larry Cohen's hospitalization, which summary included a hospital case worker's report dated June 16, 1965, containing a reference to plaintiff's treatment by Dr. Benson.
The trial court's 'Finding of Fact' found among others: (8) The medical and hospital expenses of Larry Cohen and Kenneth Cohen covered and indemnifiable under the policy were One Thousand Two Hundred and Seventy-nine Dollars and Seventy-five Cents ($1,279.75). (9) Demand was duly made by plaintiff upon defendant for same. (10) Defendant wrongfully and in violation of its written obligation failed and refused to pay plaintiff the same. (11) Defendant's refusal was vexatious, entitling plaintiff to statutory damages, interest and attorney's fees. (12) Reasonable attorney's fees incurred by plaintiff were Fifteen Hundred Dollars ($1,500.00). (13) Neither plaintiff, Larry Cohen nor Kenneth Cohen, made 'any material misrepresentations or fraudulent answers to defendant's agent at the time' agent wrote out plaintiff's application for insurance. (14) '* * * no material misrepresentations or fraudulent statements' were made by plaintiff to defendant's agent in making application for said policy, which defendant has not waived or is not estopped from pleading 'as a defense * * * or which would directly and proximately give rise to a defense of material misrepresentation or fraudulent answers.' In the trial court's 'Conclusions of Law' the court stated inter alia, (3) based on the Findings of Facts the court found plaintiff entitled to a judgment set out above.
Under 'Points relied upon' defendant states inter alia (I) (A) The fact to be determined was not what plaintiff told defendant's agent in response to his questions, but rather that the written application signed by plaintiff after she read it contained misrepresentations; (I)(B) Defendant having relied upon the written application which contained misrepresentations which were warranties and material to the risk assumed, entitled defendant to avoid plaintiff's claims and to rescind; (II) The trial court erred in granting to plaintiff statutory penalties under § 375.420, RSMo 1959, V.A.M.S., because the defendant entertained an honest difference of opinion as to its liability and was entitled to demand a judicial determination thereof; (III) The trial court allowed excessive attorney's fees. Plaintiff under 'Points and Authorities' states inter alia: 1 (A) The trial court did not err in finding damages for plaintiff and against rescission for the reason: to prevail upon this appeal, defendant must show as a matter of law the trial court should have found plaintiff's statements in her application to be warranties and not mere representations, and, therefore, defendant was reqired to prove as a matter of law plaintiff fraudulently procured insurance from defendant; 1 (B) Defendant must show as a matter of law the misrepresentations were so material to the risks assumed that defendant was entitled to void the policy ab initio.
First, we note the scope of our review. We rule the case both upon the law and the evidence. The judgment shall not be set aside unless clearly erroneous, and although we make our own findings of fact, we give due regard to the trial court's opportunity to judge the witnesses' credibility. Supreme Court Rule 73.01(d), V.A.M.R.
Viewing the evidence favorably to plaintiff, the trial court would have been justified in believing the following: Plaintiff signed the application, although defendant's agent wrote the answers to the questions, containing answers in the negative as to Questions 11 and 13(b); adopting a statement in defendant's argument, 'There was considerable testimony * * * to prove that the questions stated on the application were not in fact literally read to her (plaintiff) by defendant's agent;' before plaintiff signed the application she 'checked it over the best way (she) could in the short period of time'; plaintiff answered truthfully to the specific oral questions asked by defendant's agent; defendant's agent told plaintiff to "Verify the dates', a few things, dates of the children's births, and he handed me the pen and I verified the dates and I signed it;' plaintiff did not read the entire application; the entire transaction took ten to twenty minutes; plaintiff did not believe Dr. Benson treated her for 'anything wrong'; plaintiff had not considered having been psychoanalyzed as being a serious illness in answer to the question orally asked her by defendant's agent; de...
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