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

• Decision Date: 04 February 1941
• Docket Number: No. 25402.,25402.
• Citation: 147 S.W.2d 677
• Parties: POIGNEE v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: Missouri Court of Appeals

147 S.W.2d 677

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

No. 25402.

St. Louis Court of Appeals. Missouri.

February 4, 1941.

Rehearing Denied February 21, 1941.

Appeal from St. Louis Circuit Court; Eugene L. Padberg, Judge.

"Not to be reported in State Reports."

Suit by Emma Poignee against the John Hancock Mutual Life Insurance Company, to recover on life policy. From a judgment on a verdict for plaintiff, defendant appeals.

Reversed and remanded subject to condition for remittitur.

Leahy, Walther & Hecker, of St. Louis, for appellant.

Julius L. Block and Cecil Block, both of St. Louis, for respondent.

McCULLEN, Judge.

This suit was brought by respondent, as plaintiff, against appellant, as defendant, on a policy of life insurance issued by defendant on the life of George Poignee wherein plaintiff was named as beneficiary. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff against defendant. Defendant duly appealed.

The petition of plaintiff alleged that, on July 14, 1937, defendant issued a policy of life insurance on the life of George Poignee wherein defendant agreed to pay to plaintiff, mother of George Poignee, as beneficiary, the sum of $945 upon receiving satisfactory proof of death of the insured; that, while the policy was in full force and effect, George Poignee died; that proof was made for the insurance but that defendant refused to pay. Plaintiff prayed judgment for the face amount of the policy with interest, penalty and an attorney's fee for defendant's alleged vexatious refusal to pay.

The answer of defendant contained admissions as to the issuance of the policy by defendant and the death of the insured, followed by a general denial. It was expressly averred in the answer that the policy contained a provision that "this policy shall not take effect unless upon its date the insured shall be alive and in sound health and the premiums duly paid." The answer further alleged that, on July 14, 1937, the date on which the policy was issued, the said George Poignee was not in sound health but was suffering from diabetes mellitus, which disease was a direct contributing cause of the insured's death; and that by reason thereof the policy was void ab initio and that plaintiff was not entitled to recover. Along with its answer, defendant tendered the sum of $17.15, the amount of premiums paid on the policy. Before the trial defendant deposited the above-mentioned sum in the registry of the court.

There was also an averment in defendant's answer that, although plaintiff was named in the policy as beneficiary to whom payment might be made at the option of defendant, there was no direction requiring payment to her and hence plaintiff could not maintain the action. This part of the answer, however, appears to have dropped out of the case.

Plaintiff's reply denied the allegations of defendant's answer.

Plaintiff introduced the policy in evidence as plaintiff's Exhibit A. Plaintiff also introduced the testimony of attorney Cecil Block in which he summarized the work his law firm had done in preparing for the filing of plaintiff's petition and the trial of the case, stating that in his opinion a reasonable fee for such services was $350. Defendant, having then admitted the death of the insured on July 20, 1938, plaintiff rested, whereupon defendant presented Dr. L. M. Aronberg as a witness in its behalf. The witness testified that he was senior house physician at the St. Louis County Hospital, and, referring to the records of that hospital, testified that he treated George Poignee, the insured, the first time on June 19, 1938; that the insured at that time was suffering from diabetes mellitus; that he died on the following day; that he died a diabetic death.

The hospital records, which were introduced in evidence by defendant, showed treatment of the insured for diabetes at the hospital in June, 1934, and that he was thereafter treated at the clinic of the hospital. The record of the diabetic clinic of the hospital showed that the insured was admitted to the diabetic clinic on various dates during the months of July, September, October, November and December, 1934; January, February, March, April, May, June, August, September, October and November in the year 1935; January, February, April, May, June, July, August, September and October in the year 1936; January, February, April, June, August, and December during the year, 1937; February, March and April in the year 1938. In the hospital record, under date 6-18-38 (two days before the insured's death) appears the following:

"Known diabetic, has been treated in the clinic for past four years. Has been on 350 insulin daily. Patient went into coma, and mother gave 40-U insulin and renewed. Patient brought in for regulation, urine shows two plus sugar. Negative for acetone. Impression, diabetes uncontrolled; 2:20 a. m., patient seen by me, was sweating profusely and had convulsions and cry preceding and subsequent frothing at the mouth and biting movement of the jaw, jerking of extremities, sporadic moment following convulsions. Impression (1) epilepsy, complicating diabetes. * * *

"Now, 7:45 p. m., patient somewhat cyanotic; cold; calling for water; pulse 160 minimum; appearance of bordering on convulsions; since discharge from the hospital patient has been followed in the clinic. Of late has been on U-35 daily."

Dr. Aronberg, referring to the hospital records, testified as follows: "He was in the hospital from 6/2/34 until 7/22/34. The last record shows on the 2nd of June, at which time there was blood sugar of 136, slightly above normal—I beg your pardon, here is one later than June, 7/2/34, one of 150 at that time; the urine was negative; that means there is no sugar, sugar free."

Dr. Aronberg stated that he became connected with the hospital in July, 1937; that he did not treat the insured prior to the 19th of June, 1938.

Defendant also introduced in evidence, as defendant's Exhibit A, the "Proof of Death — Claimant's Certificate", which was signed by plaintiff as claimant, in which the cause of death was stated as "diabetes mellitus", and further showed that the duration of the illness was "two days, from the 18th to the 20th of June, 1938." Defendant also introduced in evidence its Exhibit A-1, being the statement signed by Dr. L. M. Aronberg as attending physician at the time of the insured's death. In said statement the cause of death was stated as "diabetes mellitus — duration: four years." The statement also contained the following:

"Date of your first vist or prescription in the last illness: 6/19/38.

"Date of your last visit? 6/20/38

"Have you prior to last illness attended or prescribed for the deceased? If so, give dates and other particulars."

The abstract of the record shows that the doctor stated he did not have any prior attendance. The doctor answered the last above question in the statement as follows: "Has attended clinic and been treated since 1934 by various physicians on the house staff."

In rebuttal of defendant's evidence, plaintiff herself testified that the insured was her son; that during the year 1938 her son went to the Bayless School, a mile and three-quarters from her home; that he walked there; that he had a perfect attendance during that year; that during the year 1937 he attended part Concord and part Bayless school; that the Concord School was more than three miles from their residence; that her son walked to that school also; that during all of the year 1936, he attended Bayless School; that they were living at that time more than two miles away from the school house; that he attended school regularly at that time; that he never missed attending school; that he always walked to school unless he got a lift or a ride; that a part of the time they lived at Lakewood, which was still farther away from the school and that her son always walked to school; that that was during the year 1934, when her son was nine years old; that he took part in school activities; that he joined the Boy Scouts in the district as soon as he was twelve years old; that he was a member about three years and a couple of months; that he took part in walking, swimming, running in the road, and going out over night camping with his Boy Scout friends; that he always attended Sunday school and had a perfect attendance record.

Referring to an occasion in June, 1938, prior to the 20th, the witness testified that her son came home about 8 o'clock in the evening, and about 9:30 that evening he looked scared and she asked him what had happened and he told her they were in a canoe on the lake in Forest Park; that the canoe upset and he had fallen in the water and had to swim out; that the witness went to bed and about midnight she went to her son's room and found him "strangling for air"; that she called an ambulance and had him taken to the hospital. The witness further testified that her son was "like a lot of boys, ready for all, what you call `go get 'em', just full of good spirit, never complaining"; that, "I didn't require the services of any physician to treat the boy since 1934."

On cross-examination, plaintiff testified that her son was in the hospital in 1934 for several weeks; that during that time he was taking insulin; that he took it three times a day; that she got insulin at the hospital and gave it to him daily "except maybe once or twice when he would run out. He would have to wait until we got more. That continued in 1935, 1936 and 1937."

Donald Brennecke, 16 years old, Warren Pollard, 14 years old, Carl Zimmer, 16 years old, and Charles Nichols, 14 years old, schoolmates of the insured, gave testimony for plaintiff to the effect that the insured belonged to the Boy Scout Troop; that he took part in many of the school activities; that he played in the band, and played baseball during the noon hour; that he also played on the softball team; that he went along with the Boy...