Frank v. Atlanta Life Ins. Co.

• Decision Date: 25 May 1948
• Docket Number: No. 27390.,27390.
• Citation: 211 S.W.2d 940
• Parties: FRANK v. ATLANTA LIFE INS. CO.
• Court: Missouri Court of Appeals

211 S.W.2d 940

FRANK v. ATLANTA LIFE INS. CO.

No. 27390.

St. Louis Court of Appeals. Missouri.

May 25, 1948.

Motion for Rehearing or to Transfer to Supreme Court Denied June 29, 1948.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be reported in State Reports."

Suit by Leon Frank against Atlanta Life Insurance Company, a corporation, on two policies of life insurance. From an adverse judgment, defendant appeals. Plaintiff's motion to dismiss appeal overruled, judgment reversed, and cause remanded with instructions.

Harvey V. Tucker, Virgil H. Lucas, and Silas E. Garner, all of St. Louis, for appellant.

N. Murry Edwards and Ninian M. Edwards, Jr., both of St. Louis, for respondent.

ANDERSON, Judge.

This is a suit on two policies of life insurance issued by the defendant, the Atlanta Life Insurance Company. The trial below resulted in a verdict and judgment for plaintiff, Leon Frank, for the full amount of said policies, together with an attorney's fee, and a penalty under the vexatious refusal to pay statute. From the judgment, defendant has appealed to this Court.

Both policies were issued on October 29, 1945; both insured the life of Easter Frank, plaintiff's wife; and both designated plaintiff as the beneficiary. The face amount of one of the policies was $200, and the face amount of the other was $45. Each policy contained the following provisions:

"a. If death shall occur within six calendar months from date of issue from any of the following diseases, to wit, tuberculosis, pneumonia, bronchitis, or any pulmonary disease, pellagra, cancer, tumors, diseases of the heart or blood vessels, nephritis or diseases of the kidneys, diseases of the liver, paralysis or apoplexy, or as a result of pregnancy, childbirth, or miscarriage, only one-fourth of the full death benefit shall be payable.

"b. If death shall occur after six months and within one year from the date of issue of this policy from any of the diseases named in (a) above, only one-half of the full death benefits shall be payable."

Easter Frank died October 20, 1946.

At the trial, the defendant interposed the defense that insured died of a disease of the heart or blood vessels, and that, therefore, plaintiff was entitled to recover only one-half of the full death benefits specified in said policies. With its answer setting up this defense, the defendant tendered into court the sum of $122.50, which was one-half of said death benefits; and, at the close of the whole case, defendant requested the court to instruct the jury that plaintiff was not entitled to recover more than had been tendered into the registry of the court. The court refused this request, and on this appeal defendant's principal complaint is with respect to that ruling of the court.

The death certificate, signed by the insured's attending physician and filed with the Bureau of Vital Statistics of the city of St. Louis, gives the immediate cause of death as "Acute cardiac failure due to Hypertension." This certificate was introduced in evidence by the plaintiff.

The defendant placed on the stand Dr. James E. Hurt, insured's attending physician until about twelve days prior to her death. He testified that hypertension is a condition where the blood vessels have lost their elasticity, and as a result, there is an undue pressure on both the blood vessels and the heart. He also stated that acute cardiac failure is a heart disease. He further testified that the symtoms of hypertension are: headaches, difficulty in breathing, swelling of the feet, gastrointestinal conditions, and some kidney and bladder conditions.

Dr. Hurt further testified that at the time he treated insured, her feet were swollen, she had difficulty in breathing, she suffered from headaches, and that her blood pressure was high, being 250 systolic. He also stated that she complained of pain in the region of the heart, and that his diagnosis of her condition was that she had hypertension and an acute heart. On cross-examination, he stated that "acute cardiac failure" meant that the heart stopped; that the overloading or pressure on the heart causes it to stop.

Dr. Eugene T. Taylor, insured's attending physician at death, testified that the cause of death given in the death certificate was his diagnosis. He stated that acute cardiac failure occurs when the heart gives out as a result of a resistance which it has to overcome, plus the accumulation of blood in the heart, and that acute cardiac failure was considered a heart disease. He also stated that hypertension was considered a disease of the blood vessels. He also stated that insured's death was caused by a combination of heart disease and hypertension.

In rebuttal, Dr. E. T. Urban testified for the plaintiff. He had never treated the insured, knew nothing about the case, and had never examined her record. He testified that hypertension, in his opinion, was not a disease, but was a symptom of a disease. He stated that it could be caused by many diseases, such as nephritis, arteriosclerosis, cirrhosis of the liver, focal infections, like an infection in a tube, or an infection in a prostate gland, or in the tonsils, or it might be due to extreme excitement. He said that quite frequently a patient would have hypertension at times, and the cause could not be discovered. He further testified that acute cardiac failure was a condition where the heart just stops, without any pathological condition being present, a condition which exists in all cases where a person dies; that the word "cardiac" does not mean disease, unless it is supplemented with some other word; that cardiac heart failure is not a disease but a condition, the condition being that the heart just stops. When confronted with Taber's Cyclopedic Medical Dictionary, published in 1946, which gives the definition of cardiac as a disease of the heart, he stated he did not agree with such definition.

The certificate of death made out by the...