Portell v. Metropolitan Life Ins. Co.
| Decision Date | 19 February 1952 |
| Docket Number | No. 28286,28286 |
| Citation | 246 S.W.2d 546 |
| Parties | PORTELL v. METROPOLITAN LIFE INS. CO. |
| Court | Missouri Court of Appeals |
Fordyce, Mayne, Hartman, Renard & Stribling and William W. Sleater, Jr., all of St. Louis, J. W. Thurman, Hillsboro, Joseph H. Collins, New York City, of counsel, for appellant.
Dearing & Matthes, Hillsboro, for respondent.
WOLFE, Commissioner.
This is an action on a policy of life insurance. The insured was Howard L. Portell who died January 14, 1950, of coronary thrombosis. His wife, the plaintiff, was the beneficiary, and she brought this suit for two thousand dollars which is the amount of the policy. The defendant contends that the insured knowingly made false representations upon which it relied when the policy was issued. The premiums that had been paid were tendered into court and the defendant sought to be relieved of further liability on the ground of the alleged fraudulent representations. There was a verdict and judgment for the plaintiff and the defendant prosecutes this appeal.
The policy of insurance was introduced in evidence and disclosed that it had been applied for in April of 1948. The plaintiff testified that her husband was then regularly working for a glass company in the packing room. He had never complained of having heart trouble or of being ill in any way. In addition to his regular employment, which was manual labor, he made repairs and alterations about their home which called for him to mix concrete and to do other things requiring strenuous exertion. Mrs. Portell stated that she thought every one should have a periodical physical examination and because of this she persuaded her husband to go to a Dr. Rutledge for a check up in May of 1947. The doctor gave him a prescription. She testified that her husband would belch after eating a meal and that he thought the medicine given him was for indigestion. On December 5, 1949, the insured became sick and went to see Dr. Rutledge, who, according to the plaintiff, then suggested that Portell should go to St. Louis for an electrocardiogram.
On January 14, 1950, Portell died and soon after his death a representative of the defendant company called upon Mrs. Portell. He filled out a paper designated as 'Proofs of Death Claimant's Statement', which she signed. Some time later the same representative called upon her and secured her signature to a document authorizing any physician to disclose to the insurance company any records concerning the insured decedent.
Before the policy of insurance was issued the insured had been examined by a Dr. Bolgar, on behalf of the insurance company. His report was introduced in evidence and was in the usual form of printed questions to which the examiner writes his answers. One of the questions was: The answer to this question was 'No'.
With the above evidence the plaintiff rested her case and the defendant called to the stand its local agent, who testified that he had taken the application for the policy and that after Mr. Portell died he called upon the plaintiff to prepare her claim. She answered the questions contained in the 'Proofs of Death Claimant's Statement' and told him that Dr. Rutledge had been Portell's physician. The witness did not know from whom he had received an exhibit designated 'Proofs of Death Short Medical Certificate', but he identified the signature of Dr. Rutledge which was signed to the document. This exhibit gave as the cause of death 'coronary thrombosis' due to coronary sclerosis. The statement also said that the coronary sclerosis had been of two and one-half years duration at the time of death.
Dr. Bolgar was then called as a witness, and, after being identified as a medical examiner for the defendant company, testified that he had asked the insured certain questions and that the answers to the questions appeared on the application for insurance designated 'Applicant's Statements to Agent or Medical Examiner'. One of these questions was: 'What clinics, hospitals, physicians, healers or other practitioners, if any, have you consulted or been treated by, within the past five years?' The answer was Dr. Rutledge, in 1947, for check up, no ailment was detected. In the same questionnaire the insured had stated that he had a left varicocele and answered other questions relating to his health. Dr. Bolgar stated that he examined Portell, employing the customary methods of percussion and ausculation in examining his heart and had found nothing wrong. He concluded his testimony by stating that as far as he could tell from a careful examination Portell was a normal man to whom any company could sell insurance. The prescription given by Dr. Rutledge in 1947 was for amytol and the witness stated that it was ordinarily given for coronary diseases, but frequently prescribed to people who did not have heart trouble and that it induced sleep.
An investigator for the company testified that he had presented to Dr. Rutledge the letter signed by Mrs. Portell, authorizing any doctor to disclose his records relating to treatment of the insured and that Dr. Rutledge gave him a letter covering the subject. The letter was put in evidence and stated that Portell came to the writer on May 5 of 1947 and complained of epigastric distress of one week's duration. Amytol and aminophyllin were prescribed. The letter further states:
'My findings were heart (further study indicated), * * * and arrangements were to be made later for an EKG. * * *
'When I next saw him as a patient on December 5, 1949 at which time he complained of pain coming on at work--not only epigastric but also substernal accompanied by and partially relieved by belching.'
The deposition of a doctor employed by the insurance company to pass upon applications for insurance was introduced. In this deposition he stated that the application would not have been approved had it disclosed that the applicant had been treated for epigastric disturbances and had been given amytol and that an electrocardiographic...
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