Humfeld v. Pyramid Life Ins. Co.

• Decision Date: 12 November 1960
• Docket Number: No. 41824,41824
• Parties: Herman S. HUMFELD, Appellee, v. PYRAMID LIFE INSURANCE COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 668

356 P.2d 668

187 Kan. 231

Herman S. HUMFELD, Appellee, v. PYRAMID LIFE INSURANCE COMPANY, Appellant.

No. 41824.

Supreme Court of Kansas.

Nov. 12, 1960.

Syllabus by the Court.

In an action on a health and accident insurance policy the record is examined and, as more fully set out in the opinion, it is held: (1) There was competent and substantial evidence to support the judgment rendered; (2) the allowance of attorney fees was proper, and (3) the trial court properly denied the motion for a new trial and did not abuse its discretion in denying defendant's petition for a new trial on the ground of newly discovered evidence.

L. H. Ruppenthal, McPherson, argued the cause and was on the brief, for appellant.

Roger W. Lovett, McPherson, filed a counter abstract but no brief, for appellee, and did not argue the cause.

PRICE, Justice.

This was an action to recover on a health and accident insurance policy. Judgment was for plaintiff insured, and defendant company has appealed.

The following facts were stipulated:

Plaintiff was the insured in a health and accident policy issued by defendant company. The premiums were payable on a quarterly basis. The premium due in November 1956, was not paid and the policy lapsed. In January, 1957, the past-due premium was paid and the policy was reinstated by defendant as of February 8, 1957. The pertinent provision of the policy relating to reinstatement reads:

'The reinstated policy shall cover only loss resulting from such accidental injury as may be sustained after the date of reinstatement and loss due to such sickness as may begin more than ten days after such date.'

Reinstatement being on February 8th, the policy covered only such sickness as began after February 18th.

On February 21st plaintiff consulted his doctor for a condition which was diagnosed to be what is commonly known as gall stones. Surgery was recommended, and on February 27th plaintiff underwent an operation for removal of his gall bladder. Claim was made under the sickness provision of the policy, plaintiff contending that his sickness did not begin until after February 18th. Defendant, in denying payment contended plaintiff's sickness began prior to February 18th and as early as February 1st. It was further stipulated the only question for determination was--when did plaintiff become ill?

Plaintiff testified that prior to February 21st he had had no feeling of illness, and that upon experiencing severe pain in his right side on the morning of the 21st he went to see his doctor. Prior to that date his physical condition, to the best of his knowledge, had been good. Some time after his recovery from the operation he had signed a claim blank which was forwarded to defendant company. This claim had been filled out with a typewriter by his wife. He had not bothered to read it and merely signed it. Question number 2 on this claim blank was:

'When did you first notice symptoms of this condition or realize you were beginning to get sick?'

It was answered:

'around Feb. Lst.'

He testified he knew nothing about the answer; that his wife had filled out the claim with a typewriter, and that he merely signed it.

Plaintiff's wife testified that plaintiff first experienced sickness on February 21st; that he had worked full time up until that day, and that the 'Feb. Lst.' typed in by her on the claim blank was a typographical error on her part, and that she meant 'last.' Upon further questioning she conceded that '1st' ordinarily is an abbreviation of the word 'first,' but she nevertheless contended that in this instance she meant the letters 'Lst' for 'last.'

She further testified that her husband was the insured in two other health policies with other companies; that she had filled out on a typewriter all three claim blanks at approximately the same time; that she was quite sure all had been filled out in the same way; that the letters 'Lst' had been typed in on each claim, and that they were intended to represent 'around February last.'

On behalf of defendant, the doctor who treated plaintiff testified that plaintiff first came to him on the morning of February 21st and complained of pain in the upper right quadrant of his abdomen. Two days later his condition was diagnosed as inflammation of the gall bladder and gall stones, and the gall bladder was removed on February 27th. The doctor had filled out a report to defendant company, and on this report the date 'About February 1, 1957,' was listed as when symptoms of plaintiff's illness first appeared. The doctor testified that based upon his knowledge of plaintiff's condition on February 21st he would have expected him to have experienced the symptoms as early as February 1st, and that his answer on this point contained in the medical report sent to the company was undoubtedly arrived at from his conversations with plaintiff. On the othr hand, the doctor testified that it was possible for a person to have an inflamed gall bladder and be wholly unaware of it, and that a person might go to his grave with gall stones and be well every day of his life.

He further testified that plaintiff was not the type of person who was prone to overlook his illnesses, and that he was the type who seeks medical attention promptly upon the first symptoms of illness.

At the conclusion of the trial, which was before the court without a jury, judgment was rendered for plaintiff for the...