Dye v. New York Life Insurance Co.

• Decision Date: 14 February 1921
• Citation: 227 S.W. 1062,207 Mo.App. 540
• Parties: MARY L. DYE, Respondent, v. NEW YORK LIFE INSURANCE CO., Appellant
• Court: Missouri Court of Appeals

227 S.W. 1062

207 Mo.App. 540

MARY L. DYE, Respondent, v. NEW YORK LIFE INSURANCE CO., Appellant

Court of Appeals of Missouri, Springfield

February 14, 1921

Appeal from Pemiscot Circuit Court.--Hon. Sterling H. McCarty Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Jones Hocker, Sullivan & Angert and Orville Zimmerman for appellant.

(1) At common law a return or tender of the premiums paid on the policy was not a condition precedent to the right of the insurer to assert a misrepresentation made in the application as a defense to an action on the policy. Kern v. Legion of Honor, 167 Mo. 406; Whitmore v. Knights & Ladies of Honor, 100 Mo. 36; Hanford v. Ass'n, 122 Mo. 50; Aloe v. Mutual Reserve, 147 Mo. 561; Hermann v. Court of Honor, 193 Ill.App. 366; Provident Savings Life Assn. v. Whaine, 93 S.W 1053; Duncan v. Insurance Co., 44 Colo. 472, 98 P. 634; Seabach v. Insurance Co., 274 Ill. 516. (2) It is error to submit to the jury the question of what constitutes a "reasonable" time. Yarnall v. St. Louis, etc., Ry. Co., 75 Mo. 575; Casey v. Wrought Iron Bridge Co., 147 Mo.App. 47; Harrington v. Durham, 273 Mo. 414; Kendall Shoe Co. v. Bain, 46 Mo.App. 581; Lumpkin v. Strange, 179 S.W. 742 (Mo.); Carpenter v. Railroad Co., 119 Mo.App. 204; Couch v. O'Brien, 41 Okla. 76, 136 P. 1088; Lathrop v. Maddox, 58 Colo. 258, 144 P. 870. (3) Where the uncontradicted evidence and testimony of unimpeached witnesses establishes that a representation made by the insured in his application for a policy of life insurance is false and untrue and that the matter so misrepresented contributed to the insured's death, it is error to submit such issue to the jury and the trial court should direct a verdict for the insurer. Oglesby v. Railroad, 150 Mo. 137; Carter v. Current River Ry. Co., 156 Mo. 635; Guthrie v. Holmes, 272 Mo. 215; Gilmore v. Modern Brotherhood, 186 Mo.App. 445; Suah v. Mystic Workers of World, 196 S.W. 62; McKnally v. Brotherhood of American Yeomen, 152 N.W. 169; Pampusch v. National Council, 176 N.W. 158; Spaulding v. Mutual Life, 109 A. 22; McAuliffe v. Metropolitan Life, 107 A. 258. (4) Where there is no evidence that the refusal of the insurer to pay the proceeds claimed to be due under a policy was vexatious, the plaintiff is not entitled to recover damages and attorneys' fees, and it is error for the trial court to submit the issue of damages and attorneys' fees to the jury. Non-Royalty Shoe Co. v. Phoenix Assurance Co., 210 S.W. 37. (5) Section 7068, R. S. 1909, and the Act of March 30, 1911 (Laws of Missouri 1911, p. 282), in amendment thereof, as construed and applied by the trial court in this action, is unconstitutional and void and deprives the appellant of its property without due process of law, contrary to and in violation of the Fourteenth Amendment to the Constitution of the United States, for the reason that there is no evidence in this cause that the refusal of the appellant to pay the policy sued on is or was vexatious. Non-Royalty Shoe Co. v. Phoenix Assurance Co., 210 S.W. 37.

W. G. Bray and McKay & Jones for respondent.

The answer of the defendant filed on July 15, 1919, solemnly admitted liability and that it had completed its investigation. With this answer on file, it took a change of venue and put respondent to the expense of meeting her adversary in a foreign jurisdiction and did not deposit any of the premium money until January 6, 1920, the day of trial and almost a year after proofs of death had been submitted. Waiver and estoppel were sufficiently shown as a foundation to predicate this instruction. Harland v. Insurance Co., 192 Mo.App. 203; Bell v. Insurance Co., 166 Mo.App. 390; Rhodus v. Insurance Co., 156 Mo.App. 281.

BRADLEY, J. Farrington, J., concurs. Cox, P. J., not sitting.

OPINION

BRADLEY, J.

This action is on an insurance policy of $ 1000 on the life of plaintiff's husband in which policy plaintiff was the beneficiary. The cause was filed in Dunklin county, but went on change of venue to Pemiscot county where trial was had before the court and a jury, and verdict and judgment went for plaintiff for the amount of the policy and for penalty for vexatious delay, and for attorneys' fee. Defendant filed motion for new trial, which was overruled, and it appealed.

The petition is in the usual form. The defense is alleged misrepresentations of physical conditions on the part of the insured, and that these conditions so misrepresented contributed to the death of the insured. Defendant makes many assignments some of which are based on the questions of penalty and attorneys' fee, but plaintiff files here a remittitur of that part of the judgment, so assignments based thereon are out of the case. This leaves in effect two assignments, the one based on defendant's request for a directed verdict, and the one based on an instruction given for plaintiff.

Plaintiff contends that there was no substantial evidence to take the cause to the jury, and that it should have had a directed verdict. The application which was a part of the policy was made on March 4, 1918, and insured died on April 9, 1919, of pulmonary tuberculosis. The alleged misrepresentations pleaded and relied on by defendant are in division 9 of the medical examination, and are as follows: "Have you ever raised or spat blood? (If so give full details.) No. Have you consulted a physician for any ailment or disease not included in your above answers? No. What physician or physicians, if any, not named above, have you consulted or been treated by within the last five years and for what illness or ailment? (If none, so state). Yes. Dr. Birchett, Cardwell, Mo., 1 year ago; fully rcd."

Dr. J. G. Birchett a witness for defendant testified: "I knew Mr. Dye fifteen or sixteen years. I was his family physician and treated him from time to time during that period. I treated Mr. Dye for pneumonia and lung trouble with Dr. Back in 1914. And I treated him several times after that, but I can't--my memory is not clear as to the exact dates. I do not think I ever treated him for pneumonia more than the one time. Mr. Dye had lobar pneumonia in 1914 when I treated him. The condition of the right lung showed that the lung had been diseased prior to the incipiency of the disease--pneumonia. The pneumonia left his lung in a solidified condition. Later he had an abscess formation on the lung. The abscess had the same effect on the lung as any other tissue--has a discharge of pus and you have pus-secreting membrane. I don't know exactly how long Mr. Dye had pulmonary tuberculosis, but he had it some time prior to the incipiency of pneumonia. He had that disease at the time he had pneumonia; '14. I don't remember exactly if I saw Mr. Dye in 1916 and 1917. It seems to me he was in my office just before I went to the army. I was commissioned in the army June, 1917, and I think he was in my office that spring. He complained at that time of malaria and also sore throat--a little hoarse. He was still having trouble with the same lung when I saw him in 1917." On cross-examination this physician stated that one might have all the physical symptoms of tuberculosis and yet not in fact have it, but maintained that the disease could be correctly diagnosed without a microscopic examination. "Q. But in order to determine from the symptoms you have indicated, you have got to have the patient under you and watch the progress of the disease? A. Yes, sir; I wouldn't come in and pronounce it on the first examination. Q. Or on a second? A. No; not until I had watched his case thoroughly. Q. For a period of days and weeks? A. Yes, sir; might have all the physical signs and still not have tuberculosis. Q. Isn't it also true a man might have tuberculosis and fully recover from that? A. It is; that is, the medical profession is a little divided on that, but I don't think there is any question of gaining back his physical makeup and as stout, possibly, as he ever was in his life, and have as good health. Q. What would you say with reference to Mr. Dye, if, after he had had a spell of pneumonia in 1914, that in 1918 he regained his weight until he weighed a hundred and sixty-five pounds, he was able to do hard physical labor and perform the same manual labor that he had always performed, what would you say as to his full and final recovery? A. I would have to see the patient before answering that. Q. If his looks indicated that he had a healthy complexion and he was ordinarily fleshy and feeling well and was able to work and it didn't fatigue him, what would you say about it then? A. That depends on the physical signs; if on a physical examination I found he had no evidence of tuberculosis I would pronounce him cured and a well man. Q. When he was in that condition and if you had been the medical examiner making this examination and you had found him in that condition and didn't detect anything in your physical examination that indicated otherwise, would you have reported him a good risk? A. I would not; no, sir. I treated Mr. Dye during his last illness, which I pronounced as tuberculosis. In 1917 I told him he had to get out of that climate--I told him, furthermore, he never would get well. I told him after my examination of him in 1917 that he had tuberculosis. Mr. Dye did not leave as I recommended. Mr. Dye died in 1918 from tuberculosis. I had continued my treatment with the understanding that I couldn't do him any good, only temporary relief; that his case was a fatal one. If Mr. Dye made out an application for life insurance in 1918, I would certainly say he had lung trouble and tuberculosis at that time. I knew, as his physician, that he did have it."

Dr. Eli Black as a witness for defendant testified that he had known insured for twelve or...