Hilts v. United States Casualty Co.

• Decision Date: 16 July 1913
• Citation: 159 S.W. 771,176 Mo. App. 635
• Parties: HILTS v. UNITED STATES CASUALTY CO.
• Court: Missouri Court of Appeals

159 S.W. 771

176 Mo. App. 635

HILTS v. UNITED STATES CASUALTY CO.

St. Louis Court of Appeals. Missouri.

July 16, 1913.

1. INSURANCE (§ 454) — ACCIDENT AND HEALTH INSURANCE — DISEASE OR ACCIDENT.

Where a health and accident policy consisted of two distinct parts, one insuring against accident and the other providing certain indemnities in case of disease, including an indemnity for surgeon's fees for a surgical operation for abdominal hernia, the accident portion containing no provision for any indemnity for such an operation, the policy itself classified hernia as a disease or the result of a disease and not the result of an accident, and the insurer was estopped to contend that it was the result of an accident, however it might be classified by medical experts.

2. INSURANCE (§ 454) — ACCIDENT AND HEALTH INSURANCE — COMMENCEMENT OF DISEASE.

Where a policy insured against an abdominal hernia such as would require a surgical operation and confinement at a hospital or at insured's home, and insured had no such a hernia at the time the policy was issued to him, although he may have had a predisposition to hernia, or although the inguinal ring may have been weakened, causing the subsequent development of the hernia, the insurer was liable although the policy limited liability to illnesses commencing after its date.

3. APPEAL AND ERROR (§ 999) — REVIEW — QUESTIONS OF FACT.

Where the testimony in an action on a health policy was ample to warrant a finding that the hernia, on account of which a recovery was sought, was not in existence at the date of the policy, the Court of Appeals was concluded by the verdict for plaintiff.

4. INSURANCE (§ 291) — BREACH OF WARRANTY — EXISTENCE OF DISEASE.

Where a policy insured against a hernia requiring a surgical operation, a predisposition to hernia or a weakening of the inguinal ring causing the hernia to subsequently develop was not a breach of a warranty that insured was free from any functional or organic disease, mental or physical disorder, defect, etc.

5. INSURANCE (§ 292) — BREACH OF WARRANTY — MEDICAL ADVICE.

In March plaintiff was operated upon for appendicitis. In September or October, in accordance with a request previously made by his physician, he again visited the physician, mentioning to him a peculiar sensation which the evidence tended to show was one of the first signs of hernia. The physician at that time noticed no indications of a hernia. Soon thereafter he applied for health and accident insurance, and in his application mentioned the operation, but in answer to a question as to having consulted a physician failed to mention the visit in question. Held, not a false answer to the question.

6. INSURANCE (§ 669) — ACTIONS ON POLICIES — INSTRUCTIONS.

In an action on a policy defended on the ground that insured was suffering from a hernia at the date of the policy, there was medical testimony that there might have been a predisposition to hernia, or such a condition as would likely result in its development although it was not then in existence. The court instructed that there might have been premonitory symptoms of or a predisposition to hernia which had not arrived at the stage of being the disease itself, and that mere premonitory symptoms or predisposition was not the existence of the disease, which was attacked on the ground that a symptom of a disease is not a warning of a disease likely to develop but an evidence of a present existing trouble. Held that, viewed in the light of the evidence, the instruction could not have misled the jury and did not require a reversal.

Appeal from St. Louis Circuit Court; W. M. Kinsey, Judge.

Action by Edwin P. Hilts against the United States Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ellerbe & Brokaw, of St. Louis, for appellant. Robert M. Wilson, of St. Louis, for respondent.

ALLEN, J.

This is an action to recover certain indemnities under a policy of health insurance issued by the defendant to plaintiff on November 7, 1908, providing for an indemnity for certain losses enumerated in the policy caused exclusively and directly by any disease or illness while the policy should be in force. The policy further provided for the payment to plaintiff of a certain amount for loss of time while confined in a hospital or at his residence, etc., and contained the further provision that, if the disease or illness should necessitate any of certain enumerated surgical operations, an additional indemnity of a certain amount as for surgeon's fees would be paid. Among these enumerated operations was a "cutting operation for a radical cure for abdominal hernia"; an indemnity of $200 being provided for surgeon's fees for such an operation.

The plaintiff alleges that he contracted a disease or illness, within the terms of the policy, to wit, an abdominal hernia, by reason of which an operation upon him became necessary and was performed; that he was confined in a hospital for a period of 37 days, and thereafter confined within his residence for a period of 14 days, after which he was convalescent for a period of 8 days; plaintiff's claim being for the sum of $200 for surgeon's fees, as provided in the policy, the sum of $214 indemnity for loss of time while confined within the hospital, $100 for loss of time while confined within his home, and the further sum of $34 for loss of time during convalescence.

The defenses set up in the answer of which we need take notice were that hernia was not a disease, or the result of a disease, within the meaning of the policy, but that it resulted directly from external, violent, and accidental means; that the hernia in question was not contracted while the policy was in force but that it existed prior to the application therefor; and that plaintiff was guilty of a breach of warranty with respect to the statements made by him in the application for the policy. The cause was tried before the court and a jury, resulting in a verdict and judgment for plaintiff for $563, and the defendant has duly prosecuted its appeal to this...