Ryan v. Metropolitan Life Ins. Co.

• Decision Date: 16 June 1930
• Docket Number: No. 16923.,16923.
• Citation: 30 S.W.2d 190
• Parties: RYAN v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

30 S.W.2d 190

RYAN v. METROPOLITAN LIFE INS. CO.

No. 16923.

Kansas City Court of Appeals. Missouri.

June 16, 1930.

Rehearing Denied June 30, 1930.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Suit by Mary Ryan, as administratrix of the estate of Rollo Catching, deceased, against the Metropolitan Life Insurance Company. From a judgment on a directed verdict for defendant, plaintiff appeals.

Reversed and remanded.

Grover Childers and Louis R. Weiss, both of Kansas City, for appellant.

Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, for respondent.

BOYER, C.

This is a suit upon an industrial policy of life insurance issued to Rollo Catching. After his death, plaintiff originally filed the suit in her individual capacity and as the mother and sole heir of the insured. She was later substituted as party plaintiff in the capacity of administratrix of the estate of deceased.

At the close of all the evidence, at the request of defendant, the court directed a verdict in favor of defendant, in pursuance of which a verdict was signed, judgment followed, and plaintiff duly appealed.

The petition, in addition to the usual and formal statements, contains this paragraph: "Plaintiff further states that she is the mother of said Rollo Catching; that he died without wife or children and that plaintiff is his sole and only heir; that she paid the expenses of his last illness and burial, because of all of which she is entitled to the proceeds from said policy."

The answer admits and states that the insured made application for the policy on October 19, 1925; that the policy was issued and dated November 9, 1925; that the insured died about February 25, 1926. The answer is lengthy. It pleads the application and various statements and answers of the insured, and the provisions and conditions thereof in which the applicant stated that he had never had any disease of the heart, kidneys, urinary organs, or dropsy, fits or convulsions, and that he was then in sound health and did not have any physical or mental defect or infirmity; that he had not been under the care of any physician within three years except for the purpose of having a hernia repaired, and that he was never under treatment in any hospital except during the year 1916, at Mercy Hospital in Kansas City, Mo., and that it was agreed in the application that the policy applied for should not be binding upon defendant, unless upon its date the applicant was in sound health; that the statements and representations were untrue; that the policy was issued in reliance upon said representations, and would not otherwise have been issued; that deceased was not in sound health on the date of the policy, but that at said time and for a long time prior thereto the deceased had been and was afflicted with heart disease, kidney disease, dropsy, fits and convulsions, and diseases of the urinary organs; that he had been attended by a physician for ailments other than those named, and had been in a hospital other than the one named, and had been attended by one or more physicians for serious diseases or complaints; and that the existence of the said ailments and diseases actually contributed to his death. Various provisions of the policy were set out, among which was the provision that, if the insured was not in sound health on the date thereof, or had within two years before the date thereof been attended by a physician for any serious disease or complaint, or had before said date had any disease of the heart or kidneys, then the company might declare said policy void and does so declare.

The reply was a general denial.

Appellant insists that under all the evidence in the case there was a question of fact to be passed upon by the jury as to whether the insured was in sound health on the date of the policy. The defendant contends that plaintiff is concluded as a matter of law by the statements and admissions contained in the proofs of death made and furnished by her. We will state the evidence relevant to this matter.

The insured made application on October 19, 1925. The policy was issued November 9, 1925, and the insured died February 28, 1926. The policy was introduced in evidence, and among other provisions is the following:

"If, (1) the insured is not alive or is not in sound health on the date hereof; or if (2) before the date hereof, the insured has been rejected for insurance by this or by any other company, order or association, or has, within two years before the date hereof, been attended by a physician for any serious disease or complaint, or, before said date, has had any pulmonary disease, or chronic bronchitis or cancer, or disease of the heart, liver or kidneys, unless such rejection, medical attention or previous disease is specifically recited in the "Space for Endorsements" on page 4 in a waiver signed by the Secretary; * * * then, in any such case, the Company may declare this Policy void and the liability of the Company in the case of any such declaration or in the case of any claim under this Policy, shall be limited to the return of premiums paid on the Policy, except in the case of fraud, in which case all premiums will be forfeited to the Company. * * *

"Proofs of death shall be made upon blanks to be furnished by the Company and shall contain the answer to each question propounded to the claimant, to physicians and to other persons, and shall contain the record, evidence and verdict of the coroner's inquest, if any be held. All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against, the Company."

The proof of death signed by plaintiff March 1, 1926, and delivered to defendant, shows among others these questions and answers:

"4. Cause of death? Mitral regurgitation.

"4a. Duration last sickness? _____ yrs. 1 mos.

"7. Give names of all physicians who attended deceased during last illness and during two years prior to death, and dates of attendance. Dr. McClure, Aug. 1925. Last illness.

"8. Had deceased ever received treatment at any hospital, dispensary, or other institution? If so give full particulars and dates. Research Hospital, Dr. McClure, Aug. 1925."

The physician's statement furnished by plaintiff as a part of the proof of death, and which she agreed over her signature should be considered as such in accordance with the conditions of the policy, contains among others these questions and answers:

"6. Cause of death. (See reverse side) Mitral Regurgitation Myocarditis.

"Duration from personal knowledge _____ years. 7 mos. _____ days.

"Duration from history given 1 yrs. _____ mos. ____ days.

"Contributory or secondary Interstitial nephritis.

"Duration 1 yrs. _____ mos. _____ days.

"14. Was deceased ever treated by another physician or at any hospital or other institution prior to, during or subsequent to your attendance? If so, please specify time and condition for which treated. 4 weeks — Aug. 1925 — Research Hospital."

The statement was signed by Dr. R. C. McClure March 1, 1926.

Dr. McClure testified that he began treatment of the insured about August 1, 1925, and attended him on various occasions until his death. The patient was in Research Hospital three or four weeks in August and September, 1925; that he examined the patient both before he went to the hospital and while he was there; that he had nephritis or inflammation of the kidneys; cystitis or inflammation of the bladder; prostatitis or inflammation of the prostate gland; myocarditis or inflammation of the heart muscles; mitral regurgitation or enlargement of the mitral valve of the heart, and gonorrhea. All of these ailments existed while he was in the hospital and prior thereto. He further testified to the various treatments administered, some for the kidneys, some for the bladder and gonorrhea; that the kidney condition or nephritis caused the patient to be almost totally blind for awhile; also headaches, unconsciousness, and convulsions as shown by the hospital chart that the nephritis and the heart conditions were permanent in their nature, and continued to the time of the patient's death. It was shown that the patient was in Research Hospital from August 17, 1925, to September 13, 1925. After leaving the hospital, the patient was treated by Dr. McClure on September 26 and 29, and on October 13, 27, and 29, 1925; and February 12, 22, and 27, 1926. The patient's various ailments were treated, but there was no treatment for the heart except rest in bed and milk and water diet.

The record of the patient at Research Hospital was offered in evidence, and parts of which show: "Diagnosis: G. C. cystitis and prostatitis. Complaint: About headaches for 3 months constantly. Eyes — Cannot see well. Pain in right side of back about 2 weeks; week ago pt. was unconscious for 2 days; had convulsions; last winter pt. had flu and since flu did not feel very good. Working diagnosis: After physical examination G. C. cystitis. Physical findings. Pt. looks anemic, cannot see well. Pupils dilated, no reaction to light. Heart — Enlarged Systolic murmurs regular. Abdomen — Soft tender in bladder region and both sides of abdomen no masses palpable. Tenderness in lumbar region right side."

Dr. Gilles was examiner for defendant at the time of the application of the insured, but not at the time of the trial. He testified that he asked the applicant questions as shown on the application and recorded the answers given, and, where there is no exception noted to questions, there was no exception stated. He examined the applicant October 22, 1925. His report as medical examiner contains the following:

"6. Is the heart diseased? No.

"7. Are the lungs diseased? No.

"This is to certify that upon the date last above written I personally examined at the address given in Part A hereof the Life proposed for Insurance and saw made the signature at the end of Part C...