Rush v. Metropolitan Life Ins. Co.

• Decision Date: 03 October 1933
• Docket Number: No. 22531.,22531.
• Citation: 63 S.W.2d 453
• Parties: RUSH v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

63 S.W.2d 453

RUSH v. METROPOLITAN LIFE INS. CO.

No. 22531.

St. Louis Court of Appeals. Missouri.

October 3, 1933.

Rehearing Denied October 17, 1933.

Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.

"Not to be published in State Reports."

Action by James Rush, administrator of the estate of William Moss, deceased, against the Metropolitan Life Insurance Company. From a judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

Fordyce, White, Mayne & Williams, of St. Louis, for appellant.

Harvey V. Tucker and George L. Vaughn, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action upon a policy of life insurance, issued by defendant, Metropolitan Life Insurance Company, upon the life of William Moss. The action is brought by James Rush, the administrator of the insured's estate. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the aggregate sum of $1,184, made up of items of $800 as the face of the policy, $184 as interest, and $200 as a reasonable attorney's fee allowed in consequence of a finding of vexatious refusal to pay. Defendant's motion for a new trial was thereupon filed and overruled; and its appeal to this court has followed in the usual course.

The policy in question is of the industrial type. The insured's application was made on December 15, 1927; he was examined by the company's medical examiner on December 22, 1927, and recommended as an acceptable risk; and on January 2, 1928, the policy was issued and delivered to the insured. Death occurred on May 3, 1928, in Koch Hospital at Koch, Mo., the cause of death being pulmonary tuberculosis with acute caseous pneumonia as a contributory or secondary factor.

The insured was a young man nineteen years of age at the time of his death, and for the last three or more years of his life had been in the employment of a concern located in the city of St. Louis. He resided at 2338 Clark avenue in said city, where he roomed with one Lowry Rush from and after 1925 until the time of his entry into the hospital at the inception of his last illness.

The defense in the case as tried below was based upon a provision in the application for insurance, declaring over the signature of the insured that his statements therein were true and complete, and agreeing that any misrepresentations willfully made should render the policy void, and that the same should not be binding upon the company unless upon its date he was alive and in sound health; and likewise upon a condition expressed in the policy proper, entitling the company to declare the policy void, and limiting its liability, absent fraud, to the return of the premiums paid, in the event the insured was not in sound health on the date thereof, or within the two years before the date thereof had been attended by any physician for any serious disease or complaint, or before said date had had, among other things, any pulmonary disease.

In that portion of his application which was filled out contemporaneously with his medical examination on December 22, 1927, the insured represented that he had never had any disease of the lungs, that he was then in sound health, and that he had not been under the care of any physician within a period of three years. Aside from all other considerations, it could scarcely be argued that there was not a jury question presented upon the issue of the truthfulness of such representations, in so far at least as they were material to the risk, in view of the findings of defendant's own medical examiner, certified to by him as of the same date, that he had personally examined the insured; that the insured's lungs were not diseased; that he was in sound health; and that he constituted an acceptable risk.

But, upon its point in this court that the demurrer to all the evidence should have been sustained, defendant now places its reliance upon the proposition that the insured was shown not to have been in good health at the time of the issuance and delivery of the policy, but rather that he was then suffering from the very disease that ultimately caused his death. The basis of this contention lies in what it regards as conclusive admissions against interest on the part of plaintiff, partly in his own testimony upon the stand, but principally contained in the proofs of death which were furnished the company in support of the claim.

It has been decided many times that proofs of death furnished by a beneficiary, including the statements of the attending physicians which are supplied as a part thereof, are admissible in evidence against him as admissions against interest, and, if not contradicted or explained, may preclude his recovery; but such statements against interest are after all but prima facie only, and are not to be invested and endowed with conclusive force and effect where other facts appear in evidence explanatory of, or contradictory to, the admissions contained therein. Burgess v. Pan-American Life Insurance Co. (Mo. Sup.) 230 S. W. 315; Mudd v. John Hancock Mutual Life Insurance Co. (Mo. App.) 39 S.W.(2d) 450; Smiley v. John Hancock Mutual Life Insurance Co. (Mo. App.) 52 S.W.(2d) 12; Cope v. Central States Life Insurance Co. (Mo. App.) 56 S.W.(2d) 602.

Preliminary to any reference to the contents of the proofs of death, it is enough to say that the insured did enter City Hospital No. 2 of the city of St. Louis, either on or about December 27, 1927, as contended for by defendant, or else in the latter part of January, 1928, as insisted upon by plaintiff and his witnesses, and that on February 15, 1928, he was concededly transferred to Koch Hospital. In other words, there is no controversy about the fact that he actually contracted pulmonary tuberculosis and died from it, but rather the determinative issue in the case is whether or not his last illness had its inception before or after January 2, 1928, the effective date of the policy.

One of the proofs of death consisted of the statement of Dr. L. B. Howell of the staff of City Hospital No. 2, who stated therein that the date of his first visit in the insured's last illness was December 27, 1927; that the insured had been ill about two months when he was called upon to attend him; that he was afflicted with pulmonary tuberculosis; and that the date of his last visit was February 15, 1928.

Another of the proofs of death was the statement of Dr. R. L. Ehrlich of Koch Hospital, who stated therein that the date of his first visit in the insured's last illness was February 15, 1928, and the date of his last visit May 3, 1928; and that the deceased had been ill for about three and one-third months when he was first called upon to attend him.

Quite obviously such statements, standing alone, and if unimpeached or uncontradicted, would bar a recovery upon the policy, for both of them are totally inconsistent with the idea that the insured was in sound health on January 2, 1928, when his policy was issued and delivered. The fact is, however, that such statements were contradicted and impeached in vital particulars, so much so as to lead us to conclude that there was an issue of fact presented for the jury to determine.

In the first place, in plaintiff's own statement as claimant, executed on May 8, 1928, as a part of the proofs of death, he stated that the insured had first consulted a physician for his last illness about four months prior thereto, which would have been subsequent to the effective date of the policy; that the only physicians who attended him were those at City Hospital No. 2 and Koch Hospital; and that he quit work in the latter part of January, 1928.

While on the stand as a witness in his own behalf, plaintiff testified that the...