Schnatzmeyer v. National Life Ins. Co., 56065

• Decision Date: 09 May 1990
• Docket Number: No. 56065,56065
• Citation: 791 S.W.2d 815
• Parties: Josephine SCHNATZMEYER, Plaintiff/Appellant, v. NATIONAL LIFE INSURANCE COMPANY, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 815

791 S.W.2d 815

Josephine SCHNATZMEYER, Plaintiff/Appellant, v. NATIONAL LIFE INSURANCE COMPANY, Defendant/Respondent.

No. 56065.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 9, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied June 5, 1990.

Application to Transfer Denied July 31,1990.

Arthur G. Muegler, Jr., St. Louis, for plaintiff/appellant.

John P. Emde, Wilbur L. Tomlinson, St. Louis, for defendant/respondent.

GRIMM, Judge.

In this jury-tried case, plaintiff Josephine Schnatzmeyer brought suit against defendant National Life Insurance Company to recover proceeds as the beneficiary under her daughter Linda's life insurance policy. Following a jury verdict in plaintiff's favor, the trial court granted defendant's motion for judgment notwithstanding the verdict. Plaintiff appeals. We affirm.

Plaintiff's brief contains seven points relied on. First, the trial court erred in granting defendant's motion for j.n.o.v.; because defendant failed to file a motion for directed verdict at the close of plaintiff's case, thereby waiving the issue of submissibility. We disagree, because defendant's filing of a motion for a directed verdict at the close of all the evidence was sufficient to preserve the issue of submissibility. Second, the trial court erred in allowing defendant to assert its defense of misrepresentation. Plaintiff argues that defendant waived and was estopped from asserting this defense, because it failed to tender back the unearned premium and interest on the policy within a reasonable time after receiving notice of Linda's death. We disagree, because defendant deposited the premium and interest with the trial court before trial as required by statute.

Third, the trial court erred in granting defendant's motion for j.n.o.v.; because the misrepresentations were due to mistakes made by defendant's agent and because Linda was not afforded a fair and reasonable opportunity to discover the contents of the application. We disagree; because absent fraud, mistake, or concealment, Linda was bound by her signature on the application. Fourth, the trial court erred in allowing Dr. Lindberg to testify concerning certain matters the second time he was called. We disagree. Fifth, the trial court erred in granting defendant's motion for j.n.o.v.; because defendant failed to establish the elements of its affirmative defense as a matter of law. We disagree, because all the elements of defendant's affirmative defense were either not in dispute or were established as a matter of law.

Plaintiff's sixth and seventh points attack the trial court's decision to grant defendant's motion for a new trial. Because we affirm the j.n.o.v., we do not address these two points.

I.

On October 17, 1983, Linda Schnatzmeyer visited Dr. Owen Kantor for the first time. He is board certified in internal medicine and rheumatology. She told him that she had previously been treated with various medications by Drs. Johnson and Richardson.

She complained of blotchy skin, throbbing fingers, and swollen hands. She had tightness of the skin over her fingers, and her calves were tight. These symptoms were accompanied by aches and pains in her elbows, feet, and knees associated with weak and tender muscles. Dr. Kantor suspected that she had scleroderma.

Scleroderma, a synonym for progressive systemic sclerosis, is a serious disease characterized by an unrestrained overgrowth of connective tissue in one's body. It can involve the joints, the kidneys, the lungs, the heart, and other internal organs. Scleroderma can range from a mild condition to an inexorably progressive disease which results in kidney failure, heart failure, and death within a short time. The cause of the disease and its cure are unknown.

Dr. Kantor hospitalized Linda from October 19 to 21, 1983, to confirm his diagnosis. Numerous blood tests were performed, and she was also given breathing tests and x-rays. The tests confirmed that she did, in fact, have scleroderma.

Dr. Kantor decided to treat her disease with a drug called D-Penicilamine. Before starting treatment, however, he gave Linda a copy of the Physician's Desk Reference so she could have a better understanding of the drug. He then discussed with Linda the toxic nature and possible side effects of the drug. She agreed to undergo the treatment and have appropriate check-ups.

Linda saw Dr. Kantor regularly between November, 1983, and April, 1984. She visited his office eight times during that period. On February 20, 1984, Dr. Kantor noted that she had more skin tightening, and was having some difficulty in swallowing. He increased her medication.

At her April 23, 1984, appointment, she was "pretty stable, with the exception of progression of tautness in her hands and forearms." She had some discomfort in her thighs when walking. She was continued on the same medication. Her next appointment, which she did not keep, was scheduled for June 12, 1984.

On June 8, 1984, Linda met defendant's agent at the Missouri Athletic Club for lunch. The purpose of this meeting was to have her apply for a life insurance policy from defendant. At the time, agent was unaware of Linda's health problems.

While they ate, agent made a sales presentation and Linda decided to apply for a policy. He then asked her for information needed for the application. Agent did not recall whether he asked the questions verbatim from the application form or whether he paraphrased them. Agent recorded the answers in his own handwriting. When the forms were complete, he handed them across the table to Linda, and she signed them.

Her application revealed no health problems. It failed to disclose, among other things, her hospitalization in October, 1983, her treatment by Dr. Kantor, and the fact that she was suffering from scleroderma. On July 3, 1984, a policy was issued by defendant to Linda based upon her application.

Linda's next visit with Dr. Kantor was September 10, 1984. Her health was deteriorating. She was hospitalized from October 3 to 12. She reentered the hospital on October 29. She died in the hospital on November 14, 1984. The death certificate shows her immediate cause of death as scleroderma, which caused kidney failure and a heart attack.

Plaintiff, as beneficiary under the policy, filed a claimant's statement with defendant on November 29, 1984. On February 25, 1985, plaintiff sent a death certificate to defendant. Through its investigation, defendant learned that Linda had been diagnosed as having scleroderma prior to her application. Based on this information, on May 17, 1985, defendant rescinded the insurance contract and sent plaintiff a check refunding the premiums with interest.

Plaintiff filed suit against defendant, claiming defendant breached the insurance contract by failing to pay plaintiff the policy proceeds. Defendant asserted the affirmative defense of misrepresentation, claiming that Linda made at least nine misrepresentations on her application.

The jury returned a verdict for plaintiff. The trial court, however, granted defendant's motion for j.n.o.v. The trial court held that all of the elements of defendant's affirmative defense "were either not in dispute, or were established as a matter of law."

Plaintiff's points relied on overlap and are less than clear. As such, we address those issues which we have determined are raised by her brief.

II.

Plaintiff first alleges that the trial court erred in granting defendant's motion for j.n.o.v.; because defendant failed to file a motion for directed verdict at the close of plaintiff's case, thereby waiving the issue of submissibility. To preserve the issue of submissibility, she contends that defendant had to "file a motion for directed verdict at the close of [plaintiff's] Case-In-Chief and at the close of [defendant's] Case-In-Chief."

Rule 72.01(b) is controlling. A motion for judgment notwithstanding the verdict requires only that the moving party must have "moved for a directed verdict." If that moving party presented no evidence, then the required motion is made at the close of plaintiff's evidence. If, however, the moving party presents evidence, the moving party waives any trial court error in denying the motion filed at the close of plaintiff's case. McRaven v. F-Stop Photo Labs, Inc., 660 S.W.2d 459, 460 (Mo.App.S.D.1983).

If the moving party, as here, presented evidence, the required motion for a directed verdict must be made at the close of all the evidence. Failure to file such a motion waives a contention that plaintiff failed to make a submissible case. Frisella v. Reserve Life Ins. Co., 583 S.W.2d 728, 731 (Mo.App.E.D.1979); cf. Vinson v. Vinson, 725 S.W.2d 121, 123 (Mo.App.E.D.1987) ("[N]othing in Rule 72.01 prohibits a trial court from entering a directed verdict or a j.n.o.v. without motion when merited.")

Here, defendant filed a motion for directed verdict at the close of all the evidence. As a result, it did not waive the issue of submissibility. Point denied.

III.

Plaintiff's second point asserts that defendant waived and was estopped from asserting its affirmative defense of misrepresentation. Plaintiff bases her waiver and estoppel arguments on defendant's alleged failure to tender back to plaintiff the premium and interest on the policy within a reasonable time after defendant had notice of Linda's death.

Plaintiff filed a claimant's statement with defendant on November 29, 1984. The section on "cause of death" was blank. Although the instructions on the statement indicate that either a death certificate or physician's statement is required, neither was furnished.

On February 25, 1985, plaintiff sent to defendant a death certificate and a completed questionnaire. On May 17, 1985, defendant tendered to plaintiff a check for the premium and interest. Further, the court's docket sheet reflects that more than four months before trial, defendant paid the required amount into the registry of ...