Dyer v. Kansas City Life Ins. Co.

• Decision Date: 03 February 1943
• Docket Number: No. 6420.,6420.
• Citation: 168 S.W.2d 433
• Parties: DYER v. KANSAS CITY LIFE INS. CO.
• Court: Missouri Court of Appeals

168 S.W.2d 433

DYER v. KANSAS CITY LIFE INS. CO.

No. 6420.

Springfield Court of Appeals. Missouri.

February 3, 1943.

Rehearing Denied February 17, 1943.

Appeal from Circuit Court, Camden County; C. H. Jackson, Judge.

Action by J. E. Dyer, administrator of the estate of James J. Dyer, deceased, against the Kansas City Life Insurance Company on a life insurance policy. Judgment for plaintiff, and defendant appeals.

Reversed and remanded with directions.

Phil M. Donnelly, of Lebanon, Morgan M. Moulder, of Camdenton, and Jos. R. Stewart, of Kansas City, for appellant.

Bradshaw & Fields, of Lebanon, for respondent.

FULBRIGHT, Judge.

This is an action by plaintiff, administrator of the estate of his deceased father, James J. Dyer, upon a policy of insurance issued upon the life of deceased and made payable to his estate. Trial was had to a jury resulting in a verdict for plaintiff for $1,000, and from the judgment rendered in conformity therewith the defendant duly appeals.

The petition is in conventional form.

The answer admits the defendant's incorporation; that the plaintiff is the duly appointed and acting administrator of the estate of the insured; the issuance of the policy of insurance and the death of the insured as pleaded in the petition, and denied each and every other allegation therein. It then pleaded an affirmative defense that in the application for the policy, which by express provisions was made a part of the contract, the insured had represented that his health was good and free from every disease and infirmity; that he had never suffered from any ailment or disease of the nervous system, heart or lungs, stomach, intestines, liver, kidneys or bladder; that he had never had rheumatism, gout, syphilis, goitre or diabetes, and that he had never consulted or been treated by, or been in the care of any physician, healer or any practitioner; that the defendant having no knowledge of the falsity of the insured's representations, had relied upon the same and that if it had known of his unsound health it would not have issued the policy; that defendant's liability under the policy was defended against upon the theory of false representations and warranties and a breach of the insured of an alleged sound health provision of the policy, it being the contention that on the date of his application and long prior thereto insured had been treated by a physician for heart disease and for tachycardia, enlarged heart and syphilis, and that the false and fraudulent representations made by the insured were material and that the matters and things so misrepresented by him to the defendant in his application contributed to the death of the insured.

The policy together with copy of the application, proofs of death of the insured and Medical Examiner's Report that accompanied the application were introduced in evidence by plaintiff.

In insured's application, filed with the defendant, he stated that he was, at the time, in good health and free from every disease and infirmity; that he had never suffered from any disease of the brain or nervous system, heart or lungs, and that he had never had rheumatism, gout, syphilis, goitre or diabetes; and that he had never been examined or treated by or under the care of any physician, healer or medical practitioner.

The Medical Examiner's Report, made by Dr. Jos. W. Squibb, admittedly defendant's examining physician, which accompanied the application for insurance was also introduced. Dr. Squibb certified that he carefully examined James J. Dyer and that his general appearance as to health was good; that he found no evidence of past or present disease of the brain or nervous system, heart, lungs, genito-urinary organs, stricture or syphilis. It was shown that a subpoena had been issued by the defendant for Dr. Squibb and that a non est return was made by the officer attempting to serve the same.

The written application made by deceased to the defendant company for the policy of insurance sued upon contained the following provisions:

"The above are my own full and true answers to the foregoing questions and the same, together with my answers to the questions in part two of this application, are the only statements made to the Kansas City Life Insurance Co., which, together with this stipulation constitutes my application to said company for insurance and should my application be approved, and the policy of insurance be issued, such policy and application shall be and constitute the contract between the parties hereto, and no omission, concealment or mental reservation has been made of any facts or circumstances relating to my past or present, habits, health, physical condition or family history, and I agree for myself, and for any one asserting any claim, interest or right of action hereunder, or any policy of insurance issued hereon, that any physician or other person may testify to or disclose any knowledge or information acquired in the course of any examination or treatment of me, * * *."

"* * *

"I hereby declare that all the statements and answers to the above questions are complete and true, and I agree that they shall form a part of the contract of insurance applied for.

"* * *

"If this application is accompanied by the first premium in cash and shall be approved by the Home Office of the Company, and a policy on the plan and for the amount applied for shall be issued while the applicant is living and in good health, then the insurance shall be effective, subject to the terms and conditions of the policy, from 12 o'clock noon of the day this application shall be approved by the medical department of the Home Office of the Company.

"If this application is not accompanied by the first premium in cash it is agreed that the company assumes no liability whatever until the policy of insurance is actually delivered to me during my life time and while I am in good health, and any money, check, note, obligation or other thing of value, given to the company or its agent, on account of the first premium on the policy applied for, shall be held by the company merely as a deposit and not as a payment until such time as the policy of insurance is issued and delivered to me during my life time and while I am in good health, after which the same shall be applied on such first premium charge; otherwise said deposit shall be returned to me or my heirs, executors or administrators."

It will here be observed that the first premium in cash accompanied the application.

The policy itself, among its general provisions and privileges contained the following:

"(1) Unless the first premium has already been paid in cash this policy shall not take effect until the first premium hereon has been paid and this policy delivered to the applicant within 30 days from the date hereof, and unless the applicant is in good health at the time of its delivery.

"(9) This policy and the application herefor, copy of which application is hereto attached and made a part hereof, constitute the entire contract between the parties hereto. All statements made by the Insured shall, in the absence of fraud, be deemed representations and not warranties, and no statement made by the Insured shall void this Policy or be used in defense of a claim hereunder unless the same is contained in the application herefor."

The evidence disclosed as shown by the proof of death that insured died of coronary thrombosis and listed no other contributory cause. On the question of the good health of the insured at the time of making the application and the issuing and delivering of the policy and prior thereto, it was admitted by plaintiff that insured had nervous trouble; that he suffered from what he called a nervous breakdown; that he had this nervous trouble as far back as 1937, continuing through 1939; that he had been treated by a Dr. Claiborne and that he had been treated in Springfield, Missouri, the latter part of 1939. He stated he did not know his father was very sick, and didn't see him often, but when he did he was usually at work; that these spells would last sometimes two or three days in 1939, depending on how hard he worked. If he had not done heavy work or exerted himself he would not have any, but if he had been working hard or did not take care of himself he would have the attacks. To substantially the same effect, as to the illness of Mr. Dyer, was the testimony of Mrs. Veda Dyer.

Dr. Claiborne, of Camdenton, Missouri, testified on the part of the defendant, that he had treated insured for a nervous or fast heart as far back as 1937. In August, 1939, he was called to see insured and found him in bed. He remained in bed for several days during which time the doctor made five or six calls. After the patient got up he visited the doctor's office almost every day until about October 7th, for treatment for his heart condition. The doctor stated that he did not know where he went shortly after that but that he had suggested that he go to a heart specialist — "that is, to a specialist to have his case checked — not especially the heart but more the nervous condition that made his heart beat fast." Dr. Claiborne further testified that he detected no indication of syphilis during the time he treated the patient and made no tests therefor. He did examine his heart and stated: "I never did find anything organically wrong with his heart; I never found any valve — no indication of murmurs. Yes, I had a stethoscope and examined his heart; if he had a leak or murmur or anything of that kind wrong with his heart I did not find it. Well, I wouldn't say any one would progress on to get a nervous heart working for long hours or driving himself to excess but a man that is inclined to be nervous might."

Re-Direct Examination: "Are you sufficiently qualified from your experience, Doctor, that you would say syphilis would cause this nervous heart or nervousness like that? Ans. Syphilis might cause anything. Q. Might...