State v. Allen

• Citation: 282 S.W. 46
• Decision Date: 15 March 1926
• Docket Number: No. 25679.,25679.
• Parties: STATE ex rel. JOHN HANCOCK MUT, LIFE INS. CO. OF BOSTON, MASS, v. ALLEN et al., Judges
• Court: Missouri Supreme Court

282 S.W. 46

STATE ex rel. JOHN HANCOCK MUT, LIFE INS. CO. OF BOSTON, MASS, v. ALLEN et al., Judges

No. 25679.

Supreme Court of Missouri, en Banc.

March 15, 1926.

Certiorari by the State of Missouri, on the relation of the John Hancock Mutual Life Insurance Company of Boston, Mass., against William H. Allen and others, Judges of the St. Louis Court of Appeals, to quash an opinion of such court (261 S. W. 709) rendered in a case wherein relator was defendant. Record of Court of Appeals quashed.

Leahy, Saunders & Walther and J. L. London, all of St. Louis, for relator.

S. C. Rogers, of St. Louis, for respondents.

LINDSAY, C.

The relator, under the writ of certiorari issued, seeks to quash the opinion of the St. Louis Court of Appeals in the case of Oliver W. Mueller, Respondent, v. John Hancock Mutual Life Insurance Company, Appellant, 261 S. W. 709, wherein the Court of Appeals affirmed the judgment rendered by the trial court. The case as presented takes the form of an effort more to point out errors committed by the Court of Appeals, generally, than an effort to show conflict between the rulings thus made and rulings of this court in previous and controlling decisions upon questions arising out of the same or like conditions of fact. The inquiry here must be confined within the limits appropriate to this original proceeding, and not extended over the wider field afforded by an appeal to this court.

The plaintiff sued as the beneficiary under an insurance policy upon the life of his mother, Laura Mueller. Application for the policy was made December 5, 1918; it was issued on December 28, 1918 ; and the insured died on March 4, 1919. The defense set up by answer and cross-bill was that the insured obtained the policy by false and fraudulent representations as to her state of health; that she represented herself to be in good health as far as she knew and believed, and had not been treated by a physician for nearly 25 years, whereas, in fact, ing the year next before the making of the application, she had consulted with a large number of physicians in the city of St. Louis, and that she knew at the time the policy was issued she was suffering from cancer, the disease which directly contributed to her death. Cancellation of the policy was asked under the cross-bill. The court sustained the plaintiff's motion to strike out the cross-bill ; the case was heard as one at law ; and the plaintiff had a verdict in his favor.

The Court of Appeals overruled the contention that the cross-bill converted the action into one in equity. This holding is in accord with the rulings of this court in Schuermann v. Insurance Co., 65 S. W. 723, 165 Mo. 641, and State ex rel. v. Trimble, 239 S. W. 467, 292 Mo. 371. Counsel for relator frankly express doubt whether, under the facts in this record, the case was convertible into a suit in equity by the cross-bill and prayer for cancellation, and they further express the opinion that the doctrine set out in State ex rel. v. Trimble, supra, in which it was held that an insurance policy cannot be canceled after the death of the assured, is better doctrine than that announced in Carter v. Ins. Co., 204 S. W. 399, 275 Mo. 84, L. R. A. 1918F, 325. It is suggested, however, that the decision in Carter's Case has not been expressly overruled, and may be controlling upon the question. It is true that Carter's Case is not mentioned in State ex rel. v. Trimble ; but, in the latter, the rule announced in the Schuermann Case was stated and expressly adhered to, which necessarily overruled what was said in Carter's Case on that subject, at least beyond its close application to the distinctive facts in that case. There is no conflict between the ruling of the Court of Appeals and the latest and controlling decision of this court upon the question presented by this cross-bill.

II. The relator assails the correctness of the conclusion of the Court of Appeals which sustained the trial court in overruling the demurrer, offered at the close of the case. Relator asserts that (1) according to all the creditable evidence the assured had cancer at the time she applied for the insurance; (2) that the evidence showed conclusively she was not, at the time of delivery of the policy, in the state of insurability shown by the application ; (3) that the proofs of death, which showed that the assured died of a disease which she had at the time of the application, are conclusive, unless explained away or contradicted. For the facts we look to the opinion of the Court of Appeals, and to any pleading, instruction, or written instrument referred to therein, and cannot review as upon an appeal the evidence set forth in the abstract filed in that court. State ex rel. Dunham v. Ellison, 213 S. W. 459, 278 Mo. 649 ; State ex rel. Raleigh Inv. Co. v. Allen, 242 S. W. 77, 294 Mo. 214. The finding is as follows:

"Plaintiff introduced the policy in evidence and rested. Defendant, to sustain the affirmative defense set up its answer, produced, among other witnesses, nine physicians for the purpose of establishing the fact that the deceased had cancer at the time the policy was issued, and which caused her death. The following facts appear from the testimony of these physicians:

"Dr. Garcia, on behalf of another insurance company, examined the deceased on January 30, 1919. At that time there was a blank filled out and signed by Mrs. Mueller, the date being January 26, 1919. Upon objection this was stricken out, and defendant saved objections. Mrs. Mueller was an unusually fine-looking woman, and an unusual weight. Her general condition was good, and she weighed about 170 pounds, with broad shoulders, and was a strong, `powerful-looking woman.' Defendant then offered to prove certain facts by this witness, which were objected to by plaintiff's counsel on the ground that it pertained to matters transpiring subsequent to the issuance of the policy. This objection was by the court sustained, to which defendant excepted. This witness stated that you cannot always detect the appearance of cancer with the naked eye.

"Dr. Fred B. Hall, an X-ray specialist, testified: That on the 30th of September, 1918, Mrs. Mueller came to his office in company with her sister. That she brought a letter from Dr. Mills, asking that she be treated with the X-ray. That he treated Mrs. Mueller for cancer of the stomach. Mrs. Mueller told him at the time that she had been advised to be operated upon, but declined because her husband had been operated on for the same thing and died as the result of the operation. That Dr. Mills is associated with Dr. Soper. That at the time deceased came to him for treatment she made no complaints and did not state her symptoms. At that time Dr. Hall made no examination, but gave her the X-ray treatment, as suggested in the letter from Dr. Mills.

"Dr. Englebach, a specialist in internal medicine, examined Mrs. Mueller, on January 22, 1919. He testified: That Mrs. Mueller consulted him for the purpose of securing an opinion concerning herself. That Dr. Schnoebelen was associated with him at the time. That he examined her and found she had a large abdominal mass, or tumor, which they diagnosed as a malignant or ovarian cyst, a cancer of the ovary. Mrs. Mueller gave him a complete history of her illness, as well as family history, which he took down in writing. There was another lady with Mrs. Mueller at the time. He then referred Mrs. Mueller to another doctor for an operation for this tumor. Mrs. Mueller again visited his office on three or four occasions following the date above mentioned. An X-ray was made on January 29, 1919, and from this examination he could approximate that the cancer would have to have been there a number of months to have grown to the size that it was. On cross-examination he stated that the tumor could be felt, seen and palpated. An X-ray was taken for the purpose of ascertaining with what organ it was connected. That tumor is just a generic term for any enlargement or mass. A malignant tumor is one that grows rapidly, invades other tissues, and produces sooner or later other serious results. A fibroid is a tumor of the uterus. That no fibroid was discovered. That he thought this was cystic tumor, of the ovary. That a fibroid is a benign tumor, not serious.

"Dr. Soper, a specialist on diseases of the stomach and intestines, saw Mrs. Mueller on December 31, 1917, and on May 16, 1918. Defendant offered to prove by this physician that he examined her upon the two dates; that he told her she had cancer, and she asked what she ought to do. This was objected to as a privileged communication, and such objection was sustained.

"Dr. Schnoebelen, who was associated wih Dr. Englebach at the time the examination of Mrs. Mueller was made, corroborated Dr. Englebach in the main, and stated that the final diagnosis of her case was ovarian cyst and climacteric; that you could not diagnose cancer by looking at the abdomen; that gastro-ovarian cancer means a malignancy involving the ovary and the stomach.

"Dr Mills, a specialist in gastro-intestinal diseases, testified: That he first met Mrs. Mueller on December 21, 1917, in the office occupied by himself and Dr. Soper. At that time she was accompanied by another woman. She came on two subsequent days for the purpose of an X-ray examination. That she also came on December 31st following, and on May 16, September 12, September 13, September 14, September 23, and December 17, 1918, making nine visits in all.

"Florence Barnholtz, a sister of Mrs. Mueller, identified the signature of her sister on the application. She testified: That her sister's health was good in 1917, so far as she knew. That in 1918 she had accompanied her sister to see Dr. Bartlett, Dr. Soper, Dr. Mills, Dr. Englebach, Dr. Hall, Dr. Baumgartner, and Dr. Jonas. That in 1918 her sister complained of pain in her stomach. Mrs. Mueller was operated upon about two weeks before she died,...