Jones v. Atlanta Life Ins. Co.
| Decision Date | 17 April 1956 |
| Docket Number | Nos. 29430,29438,s. 29430 |
| Parties | Robert L. JONES and Mary Jones (Plaintiffs), Appellants-Respondents, v. ATLANTA LIFE INSURANCE COMPANY, a Corporation (Defendant), Respondent-Appellant. |
| Court | Missouri Court of Appeals |
N. Murry Edwards, Ninian M. Edwards, St. Louis, for appellants-respondents.
Silas E. Garner, St. Louis, for respondent-appellant.
HOUSER, Commissioner.
This is the second appeal in an action upon two policies of insurance issued by defendant Atlanta Life Insurance Company on the life of Elvira Jones. On the first appeal we affirmed the order of the trial judge granting a new trial. Jones v. Atlanta Life Ins. Co., Mo.App., 247 S.W.2d 314. Reference is made to our first opinion for a statement of the salient facts. On remand defendant amended its answer by alleging an additional defense: that insured was not in sound health on the date of issuance of the policies but was suffering from a disease of the blood vessels, high blood pressure, or hypertension and apoplexy. (Paragraph 3 of the 'health clauses' provided that the policies should not take effect of on the policy date 'the insured be not in sound health.') On the second trial the jury awarded plaintiffs $1,719.90, including $1,000 for attorneys' fees, $42.10 for vexatious delay and $256.80 interest. The trial judge sustained defendant's motion for a new trial, set aside and vacated the verdict and judgment and entered a new judgment for plaintiffs for $105.50 plus interest, in the aggregate sum of $170.80, and costs. Plaintiffs appealed from the order and judgment. Defendant appealed from the judgment entered against it for $170.80. Defendant filed a motion to set aside the latter judgment and to enter judgment for defendant and then re-filed its notice of appeal, after the court overruled the latter motion. The separate appeals, submitted together, will be disposed of in one opinion.
Defendant denies and plaintiffs assert that plaintiffs made a submissible case on the question of the cause of Elvira's death. Contending that the undisputed evidence shows that on April 9, 1945, the date of issuance and delivery of the policies, Elvira was not in sound health but was afflicted with a disease which caused or contributed to her death on April 11, 1945, defendant cites numerous cases which hold that admissions against interest appearing in the proofs of death, unless contradicted or explained by further evidence, are binding upon the beneficiaries in a suit on a policy of life insurance, and preclude recovery. It is urged that the coroner's post-mortem report, submitted to the insurance company as a part of the proofs of death, showed that the cause of death was cerebral hemorrhage, showed that there were no marks of external violence, and revealed 'arteriosclerotic changes of the aorta and cerebral vessels;' that the death certificate showed that the immediate cause of death was cerebral hemorrhage and contained a blank space following question 22: 'If death was due to external causes, fill in the following: _____.' We are, however, of the opinion that the question of death by fall or death by disease was for the jury, for the reason that other facts were brought forward to explain or contradict the effect of these admissions. There was uncontradicted testimony that a fall occurred. Dr. Frank Niesen, testifying for plaintiffs, after examining the coroner's findings and in answer to a hypothetical question, gave his opinion that it would have been very possible that Elvira's fall caused a blood vessel in her brain to rupture and cause her death; that her death could have been from the fall; that even though there were no signs of external injury or damage to the head the mere fall, with its consequent jarring or shaking of the soft brain tissue the hard skull, would be sufficient to cause a hemorrhage. That the cause of the hemorrhage was injury was borne out, according to the doctor, by the fact that the membranes of the brain were hemorrhagic; that as a rule you would not find the membrane of the outside covering of the brain (the dura) hemorrhagic in the case of a stroke from hypertension. In such case the hemorrhage would be confined to the place of the rupture (in this case in the pons, or middle brain) and would not extend to the dura, which 'did show some signs of trauma.' He testified that this was not a normal brain; that there were arteriosclerotic changes of the aorta and cerebral vessels; that arteriosclerosis is a disease of the blood vessels; that the blood vessels were diseased; that the deceased had had the disease 'for some time;' that it was a chronic condition which was 'there a couple of days before death,' and that it was a diseased blood vessel that ruptured. But he would not say that the hemorrhage would not have occurred in a normal brain. He cited the example of athletes with perfectly normal brains who, a few days after the violence of athletic contest, die of cerebral hemorrhage. Conceding that the arteriosclerotic changes probably did have something to do with 'the acceleration of those bursted blood vessels' and that if she had not had the fall with a certain amount of violence the diseased brain would not have ruptured (whereas with the violence the diseased blood vessels ruptured) the doctor likened the situation to an automobile tire, explaining that if you drive an automobile 30 miles per hour you might not have a blowout for years but if you drove 70 miles an hour 'you would have a blowout.' The clear import of Dr. Niesen's testimony is that the blood vessels of the brain reptured because of unusual movements of violence experienced in the fall. Considering the fact of the fall, the testimony of Dr. Niesen, and that of Mary Jones that Elvira was 'fine,' in good health, performing all of her housework every day, including washing, ironing, cooking, keeping house and taking care of a baby up to the date of her death and that she was not suffering from high blood pressure and hypertension when she took out the policies, we cannot say as a matter of law that plaintiffs did not make a submissible case of death from cerebral hemorrhage caused by a fall or that plaintiffs are precluded as a matter of law from any recovery by reason of the sould health provisions of the policies.
Plaintiffs' principal point is that the court erred in sustaining defendant's motion for a new trial, giving as the reason that there was no substantial evidence to support the issue of vexatious delay. Plaintiffs urge that the following evidence was amply sufficient to submit the question: After defendant declined to pay plaintiffs' claim, counsel employed to represent the beneficiaries wrote defendant on April 19, 1945 advising of his employment. He carried on a correspondence with defendant for a period of time in 1945, finally receiving a letter from defendant in June, 1945 denying liability. Again counsel wrote defendant in October, 1946 demanding payment and again defendant refused to pay. At the first trial defendant relied solely on the defense that insured died of apoplexy which limited its liability, and defendant did not assert the defense that insured was not in sound health at the date of the issuance of the policies until May 24, 1955. Plaintiffs assert that defendant was not seeking in good faith to try out adequate defenses and point to the assertion of the sound health defense for the first time in May, 1955 as an evidence of a lack of good faith. Bad faith on the part of defendant has not been shown. As stated in our previous opinion, 247 S.W.2d loc. cit. 317:
Plaintiffs take the position that after the first trial defendant abandoned its claim that the insured died of...
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