Kester v. Metropolitan Life Ins. Co.
| Decision Date | 30 April 1934 |
| Citation | 71 S.W.2d 839,228 Mo.App. 550 |
| Parties | ELBY KESTER, RESPONDENT, v. METROPOLITAN LIFE INSURANCE CO., APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Cass County.--Hon Leslie A. Bruce Judge.
REVERSED.
Judgment reversed.
Baker & Long and Silvers & Hargus for respondent.
Meservey Michaels, Blackmar, Newkirk & Eager, Leroy A. Lincoln, Roy P Swanson, Albert L. Reeves, Jr., and L. M. Crouch for appellant.
The defendant in the latter part of June, 1932, the exact day was not shown, issued to Eva Kester in Kansas City, Missouri, a policy of life insurance by the terms of which it promised upon her death to pay to plaintiff, her husband, the sum of $ 2000. The application for the policy was made May 4, 1932, and an amended application which confirmed the answers in the original application was signed June 6. The insured died July 23, 1932. Plaintiff thereupon furnished proofs of death, defendant denied liability, and this suit followed. Trial resulted in a judgment for plaintiff in the sum of $ 2126.40 of which $ 250 was attorneys' fee. Defendant has appealed.
The pleaded defense was that the insured knowingly and intentionally made false statements in the application of May 4, which statements were confirmed in the amended application of June 6; that for several months prior to May 4 the applicant had suffered pain in the lower region of her abdomen, and that her usual medical attendant, Dr. Wilkerson and others, had treated her for appendicitis, bronchitis, sinusitis, disease of the liver, jaundice and other ailments; that on May 5 she entered a hospital in Kansas City and on May 6 underwent an operation for chronic appendicitis; that at the time the policy was applied for she was suffered from biliary obstruction, jaundice, cholelithiasis and inflammation of the gall bladder, which diseases caused her death; that it was the duty of the applicant to advise defendant of her condition before accepting the policy; that she totally failed to perform such duty and that such failure constituted a fraud upon defendant and rendered the policy void.
At the close of plaintiff's evidence and again at the close of all the evidence, the defendant requested the court to direct verdict in its favor. The requests were denied. If the court correctly ruled the latter request, the former needs no attention.
In view of the verdict we must, in determining the question, accept as true the evidence favorable to plaintiff and reject as untrue the defendant's evidence unless it tends to support plaintiff's case. [Huselton v. Commerce Trust Co., 64 S.W.2d 757.]
Although the defense was an affirmative one, the plaintiff at the threshold of the trial introduced the policy, copy of the original application and copy of the amended application. In the original application the insured said that she was "last sick" in 1920, at which time her frontal sinus was drained; that she had not had appendicitis, disease of the liver or jaundice; that she was in good health and had not been treated by a physician during the last five years. These statements were confirmed in the amended application.
The plaintiff introduced the deposition of Dr. Wilkerson. The deponent testified that on April 21, 1932, plaintiff's wife consulted him; that she was complaining of pain in the lower right abdomen "which began in a short, sharp attack four or five years ago, has been repeated several times;" that on May 2 or 3, 1932, she had an acute attack of appendicitis; that he advised an operation and that the operation was performed May 6.
Plaintiff testified that in March, 1931, his wife was surgically treated in the Bethany Hospital, her right radial antrum was removed and "her sinuses were drained;" that she remained in the hospital about twelve days; that on May 5, 1932, she was taken to a hospital and on the following day her appendix was removed; that she remained in the hospital ten days, returned to her home, and two or three days later went to work in her beauty parlor.
It is apparent that the applicant made incorrect answers in the application for the policy and repeated them in the amended application. There was substantial evidence, however, that neither the sinus trouble nor appendicitis caused or contributed to the death of the insured.
Section 5732, Revised Statutes 1929, provides that no misrepresentation made in obtaining a policy of life insurance shall render the policy void unless the matter misrepresented "shall have actually contributed to the contingency or event on which the policy is to become due and payable. . . ." There was evidence that the sinus trouble and the appendectomy contributed to the death of the insured. The conflict however, was for the jury.
But the case does not end here. We will not detail the evidence showing the cause of death. Suffice it to say that the evidence of both plaintiff and defendant shows that cholelithiasis and biliary obstruction caused the death of the insured; that jaundice, a condition characterized by yellowness of the eyes and skin, is caused by cholelithiasis and biliary obstruction.
Dr. Wilkerson further testified that between June 7-10 plaintiff's wife was jaundiced and was "complaining of the jaundice symptoms;" that she had probably been having jaundice for several days "before that," and that at that time she had infection in her gall ducts.
In the proofs of death which the plaintiff furnished to the defendant was a copy of the hospital record of the insured. Therein under date of July 11 is the following: The final diagnosis under the same date was "cholelithiasis-biliary obstruction."
Dr. Smith testified in deposition, introduced by the plaintiff, that he called at insured's home on July 10; that at that time she had "severe pain, general pain, swelling, shortness of breath, gastric disturbance and nausea, some temperature, headache, constipation . . .;" that she entered the Bethany Hospital the next day; that in a few days thereafter she underwent an operation for the relief of the obstruction of the common duct; that the patient did not recover from the operation, and that the primary cause of death was cholelithiasis and biliary obstruction. Concerning the duration of the condition in which he found his patient, he testified:
Plainly, the evidence of both Dr. Wilkerson and Dr. Smith and the hospital record shows that plaintiff's wife, prior to the delivery of the policy, was jaundiced, complained of the condition, and that the jaundice was produced by the very disease which later caused her death.
The questions presented are: First, were the representations made by the applicant in her application continuous statements and in effect at the time the policy was delivered? The application was a proposal to buy a policy of life insurance; a contract which would not be effective until delivered. To induce the defendant to accept the proposal, the applicant represented that she was in good health, had not had disease of the liver or jaundice. The...
To continue reading
Request your trial
-
Watkins v. Prudential Ins. Co. of America
... ... law. Sec. 5843, R. S. of Mo., 1939; Kirk v. Metropolitan ... Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333; Kester v ... Metropolitan Life Ins. Co., 228 ... ...
-
Allen v. American Life & Accident Ins. Co.
...67; Otto v. Metropolitan Life Ins. Co. , 72 S.W.2d 811; Bell v. Kansas City Life Ins. Co. (Mo.App.) 71 S.W.2d 135; Kester v. Metropolitan Life Ins. Co. , 71 S.W.2d 839; Streeter v. Washington Fidelity Nat. Ins. Co. , 68 S.W.2d However, on the present appeal we have in evidence the records o......
-
Gabbett v. Connecticut General Life Ins. Co.
...We are of the opinion that that time is when the contract of insurance is made or, as was said in the case of Kester v. Metropolitan Life Ins. Co. 228 Mo.App. 550, at 554, "the representations . . . must be regarded in law though they were made at the time the policy was delivered." As qual......
- Kester v. Metropolitan Life Ins. Co.