Longo v. John Hancock Mut. Life Ins. Co.

• Decision Date: 02 July 1940
• Docket Number: No. 25355.,25355.
• Parties: LONGO v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: Missouri Court of Appeals

142 S.W.2d 871

LONGO v. JOHN HANCOCK MUT. LIFE INS. CO.

No. 25355.

St. Louis Court of Appeals. Missouri.

July 2, 1940.

Rehearing Denied September 13, 1940.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by Phillip Longo against the John Hancock Mutual Life Insurance Company, on a life policy. From a judgment for plaintiff, defendant appeals.

Affirmed.

Leahy, Walther, Hecker & Ely and Lyon Anderson, all of St. Louis, for appellant.

Robert E. Hannegan, Gilbert Weiss, and Martin A. Rosenberg, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, the beneficiary, upon a policy of insurance issued by defendant upon the life of plaintiff's wife, Josephine Longo, who died on April 11, 1935, from pulmonary tuberculosis.

In his petition, after alleging the issuance of the policy on February 13, 1934, and the death of the insured as indicated above, plaintiff prayed judgment against defendant for the face amount of the policy with interest, together with a statutory penalty and attorney's fee by way of vexatious refusal to pay.

The answer set up that the policy was void by reason of certain alleged false and fraudulent representations intentionally made by the insured in her application for the policy, and also by reason of a breach of the sound health provision of the policy, all in respects material to the risk insured against.

In his reply, plaintiff alleged that no false or fraudulent representations had been made by the insured in her application, but that on the contrary, truthful answers had been given by her to each question propounded to her; that defendant's agents had themselves filled out the application; that if any false answers were written in such application, they were inserted therein by defendant's agents without the direction or knowledge of the insured, and contrary to her actual answers; and that defendant, through its agents, had had full knowledge of the facts with regard to the health of the insured, and having issued its policy with knowledge of such facts, was estopped to deny the validity of the policy.

Tried to a jury, a verdict was returned in plaintiff's favor for the aggregate amount of $1,580, made up of items of $1,000, the face amount of the policy; $230 as interest; $100 as a penalty for vexatious delay in payment; and $250 as an attorney's fee. Judgment was rendered accordingly, from which defendant's appeal to this court has followed in the usual course.

The answers complained of in the application were to the effect that the insured had never received or applied for treatment at any hospital, dispensary, sanitarium, cure, or other institution, and had never had or been treated for consumption.

As a matter of fact, it is now conceded that the insured not only had, and died from, pulmonary tuberculosis, but also that she had received treatment for such disease at the Isolation Hospital from December 16, 1929, to April 16, 1932, and at Koch Hospital from April 16, 1932, to November 20, 1932, all long prior to the issuance of the policy on February 13, 1934. However, it is not conceded that she was not of sound health, or that she was suffering from tuberculosis, at the time of the issuance of the policy, since there is a hiatus in the record from November 20, 1932, when she was discharged from Koch Hospital as an arrested case, up to March 6, 1935, more than a year after the issuance of the policy, when she was admitted to the City Hospital, where she died of tuberculosis on April 11, 1935.

Defendant's evidence was to the effect that notwithstanding the insured's previous discharge from Koch Hospital as an arrested case, she was not in sound health at the time of the issuance of the policy, but was undoubtedly even then suffering from a low grade tubercular activity, which became more active a considerable period of time before her death.

Plaintiff, on the other hand, brought out the fact from defendant's own expert that the insured's discharge as an arrested case signified that there was at least no tubercular activity then present in her lungs which could be determined from clinical and X-ray findings, and that in arrested cases of tuberculosis, it is possible, if there is enough salvage after the activity is arrested, for the patient to live out his regular and normal span of years. It was shown, however, that when the insured was discharged as an arrested case, she was advised that because of certain factors present in her case, she should thereafter report from time to time to the out-patient clinic for further observation with regard to any evidence of recurrence of activity; and plaintiff himself admitted that in accordance with the suggestion thus made to her, she had followed the practice of visiting the clinic at intervals of once a month, and was so doing at the very time her application was taken by defendant's agents.

Other of plaintiff's evidence was to the effect that the insured had not had any trouble after her discharge from the hospital and prior to the time of the issuance of the policy; that she had been able to perform all her household duties, although she had been advised by one of the Koch Hospital physicians not to do so; that she got about and visited her friends, as she was doing on the day her application was taken; and that her general condition remained good until August, 1934, six months after the issuance of the policy, when she contracted a cold, which "hung on and on", and inferentially was responsible for the reactivity in her tubercular condition, which finally caused her to enter the City Hospital on March 6, 1935, where she died on the following April 11th.

Defendant argues as a matter of chief insistence that its demurrer to all the evidence should have been sustained, and if the question was wholly one of whether the evidence would have permitted a legitimate finding that the insured was in sound health at the time of the issuance and delivery of the policy, we would have serious misgivings as to plaintiff's right to have had the case submitted to the jury. The fact is, however, that the case was not tried and submitted upon the questions of the truthfulness of the representations contained in the application and of the insured's sound health at the time of the issuance and delivery of the policy, but rather upon the question of whether defendant's agents had themselves prepared and taken the application, knowing at the time that the insured had been confined in the hospital for treatment for tuberculosis.

Resolving all conflicts of fact in plaintiff's favor, the record shows that one Saputo, a soliciting agent for defendant, had been personally acquainted with both plaintiff and the insured for a great many years, and knew that the insured had been confined in the hospital for treatment for tuberculosis. Plaintiff saw Saputo quite often, and during the insured's confinement in both the Isolation Hospital and Koch Hospital, plaintiff had frequently discussed her condition with Saputo in response to the latter's inquiries as to how she was getting along.

At the time in question, defendant had a selling campaign under way, in pursuance of which one Ramsey, a local assistant manager, was out upon the street with Saputo soliciting applications for insurance.

The two of them came into plaintiff's filling station, and after Saputo had introduced Ramsey to plaintiff, he informed plaintiff of the campaign that was then in progress, and solicited plaintiff for a policy of insurance upon his life. Plaintiff declined to take out any more insurance, whereupon Saputo inquired about writing a policy upon the insured, to which plaintiff suggested that he doubted her eligibility on account of the fact that she had been confined in the hospital. In the discussion that ensued, plaintiff informed Ramsey that she had been in the hospital for tuberculosis and had been discharged as an arrested case, to which Ramsey replied that "it would be all right as long as she is an arrested case, it wouldn't make much difference".

The three of them thereupon went across the street to where the insured was visiting with a friend on that particular day, and upon being introduced to her, Ramsey stated, "She don't look like she has been a sick woman." After asking her some casual questions limited to such matters as her name and address, whether her father and mother were living, and how many brothers and sisters she had, Ramsey filled out the application to his own satisfaction, and then gave it to the insured to sign, without reading it, and without asking her to read it. Complying with his request, she merely signed her name at the point indicated, whereupon Ramsey took back...