Lipel v. General American Life Ins. Co.

• Decision Date: 19 February 1946
• Docket Number: No. 26909.,26909.
• Citation: 192 S.W.2d 871
• Parties: LIPEL v. GENERAL AMERICAN LIFE INS. CO.
• Court: Missouri Court of Appeals

192 S.W.2d 871

LIPEL v. GENERAL AMERICAN LIFE INS. CO.

No. 26909.

St. Louis Court of Appeals. Missouri.

February 19, 1946.

Rehearing Denied March 22, 1946.

Appeal from St. Louis Circuit Court; Francis E. Williams, Judge.

"Not to be reported in State Reports."

Action by Charles Lipel, trustee for Edward A. Lipel and Joann M. Lipel, against General American Life Insurance Company to recover death benefits on two policies of life insurance. Judgment for plaintiff, and defendant appeals.

Reversed and cause remanded.

Powell B. McHaney, Frank P. Aschemeyer, and Paul G. Ochterbeck, all of St. Louis, for appellant.

Max Sigoloff and Oscar Habenicht, both of St. Louis, for respondent.

HUGHES, Presiding Judge.

The suit is to recover death benefits on two policies of life insurance; count one of the petition is on a policy issued and delivered, and the premium paid, on December 30, 1942, for $1500, the application being dated October 31, 1942, and the beneficiary being the plaintiff as trustee for Edward A. Lipel, son of the insured, Joseph H. Lipel, and count two is on a similar policy except that the amount of insurance is $1000, and the beneficiary named is plaintiff as trustee for Joann M. Lipel, daughter of the insured. A copy of the application was attached to each policy and made a part thereof and each policy contained a provision as follows:

"The Contract. This policy and the application herefor, a copy of which is attached hereto and made a part hereof, constitute the entire contract. All statements made by the insured shall in the absence of fraud be deemed representations and not warranties, and no statement shall avoid the policy unless it is contained in the application herefor. If the age of the insured be misstated, the amount payable hereunder shall be such as the premium paid would have purchased at the correct age."

The amended answers contained the following admissions: That defendant is a Missouri corporation doing a life insurance business; that on December 30, 1942, it issued and delivered the policies sued on; that the insured paid the first annual premiums on December 30, 1942; that the insured died on June 3, 1943; and that notice of death and due proof of death of the insured was given to defendant.

The amended answers, as affirmative defense, alleged that on or about October 31, 1942, Joseph H. Lipel made written application for $3500 of life insurance on the ordinary life, non-participating plan, with disability benefits; that in said application for insurance said insured stated that he was in good health; that he did not have cancer, tumors or ulcers of any kind; that he did not have any diseases not specifically mentioned in said application; that in the ten years prior to the date of the application he had only been operated on for appendicitis and tonsillitis; and that during said ten year period said insured had had no other diseases, injuries, surgical or medical treatment or advice; that paragraph "12" of said application is as follows:

"12. I agree on behalf of myself and any person or persons, firm or corporation, who may have or claim any interest in any insurance issued on this application as follows:

"(1) If the first premium is paid in cash at the time this application is made and this application is thereafter approved by the Company for the amount, on the plan, and in accordance with the terms of this application, the insurance will be in force from the date of such approval; and the first policy year shall, unless otherwise requested, begin with the date of such approval. (2) If the first premium is not paid in cash at the time the application is made, or if a policy different from the one described in this application is issued, the insurance shall not take effect until: (a) the first premium thereon has actually been paid to and accepted by the Company, or its duly authorized agent, and (b) the policy has been delivered to and accepted by me; and provided both of conditions (a) and (b) occur during my lifetime and while my health, habits and occupation are the same as described in this application; but the policy shall nevertheless bear the date of its issuance and the due dates of all future premiums shall be reckoned from the effective date specified therein and all policy values and Continued Paid-up Term insurance shall be computed therefrom. (3) Any policy which may be issued on this application shall contain the Company's current exclusion provisions including War and Aviation Risk Restrictions."

The amended answers further alleged that on December 29, 1942, the insured requested that two policies be issued instead of the one for $3500, and that the amount of insurance in such policies be $1500 and $1000, and in accordance with such request the policies sued on were issued. The amended answers further alleged that on December 30, 1942, and prior thereto, the insured was suffering from cancer of the lymph glands; that said disease was a direct contributing cause of the death of the insured; that defendant was not aware that the insured was so afflicted until after his death; that if defendant had known that the insured had cancer of the lymph glands, it would not have issued said policies of insurance to insured or have delivered the same to him; that by reason of the aforesaid, said policies of insurance never became effective; that defendant has deposited the premiums paid on said policies, together with interest thereon at the rate of six per cent per annum from December 30, 1942, with the clerk of the court for the benefit of the person or persons who may be entitled thereto.

Plaintiff's replies were a general denial of the allegations of the answers, except as to the admissions therein contained.

The case proceeded to trial before the court and a jury, and plaintiff introduced in evidence the two policies, together with the attached application therefor; and further offered in evidence the admissions contained in the answers, and counsel for plaintiff and defendant agreed that, in the event the court should submit the case to the jury, $400 would be the reasonable value of the legal services rendered by plaintiff's attorney.

Thereupon the defendant to sustain the issues on its part tendered evidence beginning with an offer of Exhibit A, being a certified copy of the death certificate of Joseph H. Lipel. At this point plaintiff's attorney objected to the introduction of any evidence on behalf of the defendant, for the reason that under the terms of the contract and each of them in this suit, and further by reason of the allegations in the answers of the defendant, the defendant fails to plead any facts sufficient to constitute any legal defense in this case, either to the first count or the second count of plaintiff's petition. This objection was sustained by the court. Defendant's counsel then made offers of proof, to all of which the same objection was made and sustained by the court. Such offers of proof consisted of the following:

The certificate of death issued by the State Board of Health of Missouri, under date of June 4, 1943, showing under the heading of "Medical Certification" and signed by Dr. Albert E. Taussig, that Joseph H. Lipel died in the Jewish Hospital in St. Louis, Missouri, on June 3, 1943, at 6:20 P. M., and that the immediate cause of death was lymphosarcoma, generalized, duration six months.

Defendant offered to prove by witness Fred F. Sale that, as soliciting agent for the defendant, he obtained from Joseph H. Lipel the original application, and thereafter a policy was issued on November 16, 1942, to be effective November 15, 1942, for $3500; that the insured refused to accept the policy but agreed to accept two policies, one for $1500 and one for $1000; that the witness then surrendered the $3500 policy to defendant, and defendant issued the two policies in suit on December 30, 1942, on the same application which had been signed by Joseph H. Lipel; that the two policies were delivered to Joseph H. Lipel on December 30th or 31st, and the full annual premium was then paid on each policy.

Defendant then offered in evidence several exhibits, which were rejected on plaintiff's objection, and which would have shown the following: Exhibit B, the original application, showing that the applicant stated, among other things, that he was in good health and that he was not at that time suffering from any cancer, tumors or ulcers. The application contained the sound health clause as above set out in defendant's answers. Exhibit C, the proofs of death, showed that Joseph H. Lipel died on June 3, 1943, the cause of death was lymphosarcoma, and that the deceased first complained of or gave other indication of his last illness in January, 1943; and attached to the proofs of death was an attending physician's statement signed by Dr. G. E. Gruenfeld, in which the date of death was given as June 3, 1943; immediate cause of death, cachexia due to lymphosarcoma, and that deceased had suffered from that disease about eight months in his opinion. Also attached to the proofs of death was an attending physician's statement signed by Dr. Albert E. Taussig, in which he stated the cause of death was lymphosarcoma, and the duration in his opinion, less than a year. Exhibit F, being records of the Jewish Hospital, showed that Joseph Lipel was admitted to the hospital on December 22, 1942, for medical observation; the notes made by Dr. Rindskopf state among other matters, "Neck not stiff, no lymphadenopathy," and, "In left supraclavicular region there are three or four lymph nodes, non tender, movable and discrete, about size of pecan"; and notes made by Dr. Sigoloff on January 23, 1943, show that he...