Metropolitan Life Ins. Co. v. Erdwins

• Decision Date: 13 May 1935
• Parties: METROPOLITAN LIFE INS. CO., APPELLANT, v. PETE W. ERDWINS ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

83 S.W.2d 597

229 Mo.App. 437

METROPOLITAN LIFE INS. CO., APPELLANT, v. PETE W. ERDWINS ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

May 13, 1935

Appeal from Circuit Court of Lafayette County.--Hon. Robt. M Reynolds, Judge.

JUDGMENT IN FAVOR OF RUBY ERDWINS REVERSED.

Judgment in favor of defendant reversed.

Leroy A. Lincoln and Montgomery, Martin & Montgomery for appellant.

Carl L Ristine and Blackwell & Sherman for respondent.

OPINION

BLAND, J.

This is a suit instituted by a bill in equity asking the cancellation of a policy of life insurance, including total and permanent disability and accidental death coverage issued by the plaintiff to the defendant, Pete W. Erdwins. Prior to the institution of the suit the insured suffered a total and permanent disability. Claim therefor was made and refused. Thereafter this suit was instituted.

The chancellor decreed the cancellation of that part of the policy covering insurance upon the life and for accidental death of the insured, refused to cancel and upheld as a valid and subsisting obligation the permanent and total disability coverage, and rendered judgment in favor of the defendant, Ruby Erdwins, in the sum of $ 780 for total disability of the insured for a period beginning on March 24, 1930, and ending June 24, 1933. Plaintiff has appealed, claiming that the court erred in failing to cancel the policy in its entirety. Defendants have not appealed.

The policy provided, among other things, that plaintiff would pay to Ruby Erdwins, the wife of the insured, $ 20 per month if the disability of the insured was due to or accompanied by mental incapacity. It was upon this clause of the policy that the court rendered judgment in favor of the defendant, Ruby Erdwins.

In the spring of 1930, insured suffered a nervous breakdown and in May or June of that year his ailment was diagnosed as dementia praecox. He entered the State Hospital for the Insane at St. Joseph on July 8, 1930, and remained there until September 24, 1930, on which day he was paroled. He was returned to this institution on February 5, 1931 and has remained there ever since.

Defendant, B. M. Little, was appointed guardian ad litem to represent the insured in this suit. The defendant, Traders Bank, claimed an interest in the policy by virtue of an assignment thereof by the insured and the beneficiary to it as security for a certain indebtedness which he and his wife contracted to the bank while he was on parol from the hospital.

Plaintiff in its bill sought to have the policy cancelled on the ground of breach of warranty and fraud in the application and for procurement of the insurance by the insured. The application was dated May 15, 1929, and the policy was issued on May 22 of that year. In the application which insured signed he stated that his present condition of health was good; that he was last sick in February, 1920; that the nature of his ailment was influenza and that he was sick eighteen days; that he had no mental or physical infirmities; that he had not been attended by a physician for five years and had lost no time from his work during that period. The application disclosed that insured was twenty-seven years of age at his nearest birthday. It recited that insured had read the answers to the questions before signing it; that they were correctly written; that they were full, true and complete. The application also stated that it was understood and agreed that the statements and answers contained therein were correct and wholly true and formed the basis of the contract of insurance if one should be issued.

The evidence shows that insured lived with his wife and three children near Lexington; that in his youth he had suffered an attack of spinal meningitis which left one of his legs somewhat shriveled and slightly shorter than the other. Insured lived on a farm consisting of about 100 acres. He did all of the work of the farm except at harvest times. He was a very ambitious man and a hard worker.

Plaintiff called as a witness, Dr. Payne, of Lexington, who testified that he was insured's family physician; that he had treated insured in 1920; that the latter moved away and later returned and in 1926 the witness again became insured's family physician; that in 1926 most of his services were to insured's family; that starting about September, 1927, and continuing until December of that year he treated insured, seeing him anywhere from one to four times per week, both at his home and at the doctor's office in Lexington but mostly at the latter; that he treated insured at intervals through 1928 but not so often as he had in the fall of 1927.

The doctor further testified that in September, 1927, insured "just complained of being tired and weak, just a general debility, and he had a nerve tire, a physical tire. He was a man that was very ambitious, he worked hard and wasn't strong and he would get a tire; just a general weakness. Q. Did you make any diagnosis of his condition at that time? A. Well, I didn't make a diagnosis in one sense; I knew his condition was one--just one of those asthenic conditions, or neurasthenia. Q. It was a nervous condition that was manifesting itself then? A. Yes" that during the fall of 1927 insured and one of his little girls became poisoned from milk; that insured expressed the opinion that someone had given his cows poison; that the treatment that the doctor gave him from September to December, 1927, was "general constructive treatment, both general reconstructive tonics and nerve tonics and nerve building and general builders;" that he gave insured some intravenous treatments two or three times a week and "then rested on it awhile, and then gave him some more a little later, in that time from September until December;" that he also prescribed some oral treatments which consisted of medicine that he gave insured to take at home three or four times a day. Asked as to the condition of insured's mind during that time the witness stated: "Well, with that one exception (evidently referring to insured's belief that his cows had been poisoned), which was of short duration, it was very good; he was a little blue, so to speak, he was a little depressed in that he didn't feel good; he liked to work and he liked to feel good and, of course, when he didn't that would make him a little depressed, but the only marked symptoms he had was a little at that time. . . . Q. From your familiarity with this case, from your treatment of Mr. Erdwins, I wish you would tell us what, if any, connection there is, or where there was, between Mr. Erdwins' condition in 1927 and the condition in which you found him in 1930? A. Well, as I know the case now, I can look back on the case, his condition at that time may be one that is similar to a condition that usually precedes the one that he has now. Q. You mean, Doctor, by that that the condition as it existed in 1927 was a forerunner of this condition that you found in 1930? A. Well, this condition that he now suffers usually follows just such a condition that a patient who is run down, weak, tired, nervous, are the ones that develop--may easily develop, dementia praecox."

On cross-examination the doctor testified that there would be intervals of a few weeks or a month that insured did not see the witness "from December, September, '27, through '28 and '29 he was very much improved and got along very good;" that insured had some symptoms of anemia; that the treatment he gave insured was a tonic, special foods, in order to build up the blood, which is deficient in red corpuscles in anemia; that insured reacted favorably to these treatments; that he was better in 1929 than he was in 1928; that after the first "three months in the year of 1928 he got along very nicely; however, I saw him all during the year. Q. You never at any time suggested to Pete (insured) that he had any mental derangement or mental trouble, did you? A. No, sir."

On re-direct examination he testified that insured during the period from September to December, 1927, was confined to his bed at times; that the witness did not go to see him at the house over three or four times; that insured was not in bed "over a period of time." On recross-examination he testified that he was not the regular examining physician for the plaintiff, "I was one of the examining physicians."

Later in the trial Dr. Payne was called for further cross-examination. He testified in regard to the statement of insured that he and his child had become sick by reason of poisoned milk from cows that someone had poisoned, as follows: Q. Doctor, as a medical man, you never attached any significance to that isolated instance as throwing any light upon any mental derangement, did you? A. Well, I knew that it wasn't right, but, of course, waited developments and there were no further developments as to any mental derangement, so I didn't think anything of it. Q. I say you didn't attach any significance to that isolated one instance at all? A. No, I didn't. Q. In other words, before a medical man would attach any significance to the fact that anybody was having delusions or misapprehensions about a matter, they would have to occur a good many times before you would attach any medical significance to it, isn't that true? A. Yes, they would have to continue and be pronounced enough that you could make a diagnosis;" that he had attended insured at the time the latter had a nervous breakdown in the spring of 1930; that that was the first time that the witness had attached any significance to insured's mental symptoms. "Q. Now, the fact that the man would get tired after working hard, or the fact that he had neurasthenia, the most that you could say about neurasthenia was that that might...