Tevlin v. Federal Life Ins. Co. of Chicago

• Decision Date: 02 May 1939
• Docket Number: No. 24938.,24938.
• Citation: 127 S.W.2d 743
• Parties: TEVLIN v. FEDERAL LIFE INS. CO. OF CHICAGO.
• Court: Missouri Court of Appeals

127 S.W.2d 743

TEVLIN v. FEDERAL LIFE INS. CO. OF CHICAGO.

No. 24938.

St. Louis Court of Appeals. Missouri.

May 2, 1939.

Rehearing Denied May 16, 1939.

Appeal from St. Louis Circuit Court; Michael J. Scott, Judge.

"Not to be reported in State Reports."

Action by Anna C. Tevlin against the Federal Life Insurance Company of Chicago to recover monthly payments due on a family income insurance policy issued by defendant on the life of plaintiff's husband. Judgment for plaintiff, and defendant appeals.

Affirmed.

Frank L. Ramacciotti and R. E. La Driere, both of St. Louis, for appellant.

Callahan & Callahan and John P. Griffin, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, the beneficiary, to recover some thirty-four monthly payments (aggregating $1,700) allegedly due upon a policy of family income insurance which was issued by defendant upon the life of plaintiff's husband, Leo J. Tevlin, who died on December 10, 1932.

The trial below resulted in a jury's verdict in favor of plaintiff, and against defendant, for the aggregate sum of $2,500, embracing the principal amount sued for with $300 interest, together with an allowance of $500 for attorneys' fees pursuant to a finding of vexatious refusal to pay. Judgment was rendered in accordance with the verdict, and defendant's appeal to this court has followed in the usual course.

The policy contained the usual provisions that it was issued in consideration (among other things) of the application therefor, which, along with the policy proper, constituted the entire contract between the parties, and that all statements made in the application were, in the absence of fraud, to be deemed representations and not warranties. The insured agreed in the application that all of the statements and answers contained therein were material, full, true, and complete in every respect, and that the same were offered to defendant as a consideration for a policy of insurance which should not take effect until the policy had been actually delivered to and accepted by the insured and the first premium paid thereon during his lifetime and while he was in good health.

Issue was joined between the parties upon the question of whether the insured, in his application for the insurance, had made certain false and fraudulent representations with respect to matters material to the risk, that is, with respect to matters actually contributing to the death of the insured, which was the event or contingency upon which the policy became due and payable.

The insured had spent all his working years in the insurance business, and for the last ten years of his life had been employed as a soliciting agent for defendant itself in its St. Louis territory.

Defendant undertook to defeat plaintiff's prima facie case by offering certain records of the United States Veterans' Bureau pertaining to the insured's service in the Marine Corps during the World War and his subsequent claim for compensation for disability resulting from his having been gassed on April 13, 1918, while on active duty in the Verdun sector.

Though plaintiff's own evidence showed only that the insured, following his discharge from the Marine Corps in 1919, was called to the Veterans' Bureau at various times for physical examinations, there was nevertheless no dispute about the fact that he was gassed during the war and thereafter received compensation from the government for disability found to have been connected with his military service.

The records offered in evidence by defendant consisted of sixty-seven separate exhibits which purported, in most instances, to recite the findings or diagnoses of physicians, who, in the period of ten years from March 30, 1920, to April 30, 1930, had examined the insured, and had made reports or recommendations to the Bureau, with respect to his claim for compensation. It is enough merely to say of these records that they disclosed that the insured had been consistently found to be suffering from the ordinary inflammatory conditions or diseases of the nose, throat, and chest, including laryngitis and chronic bronchitis (described, towards the last, as "moderate", "mild", or "very mild"), and that his disability, which in 1920 had been rated at ten per cent, had gradually progressed to the point where, on April 30, 1930, he was given a temporary partial disability rating of eighty-one per cent, which continued unabated until his death on December 10, 1932.

It was shown that the insured, in the fall of 1930, desired to take out a policy of insurance in defendant company, but being anxious to avoid a rejection, preferred not to make formal application unless he was given reason to believe that his application would be accepted. One Knetzger, the then manager of the defendant's St. Louis office, knew of the insured's apprehensions, and on a subsequent occasion when Dr. Jenny, the company's medical director, happened to be in the office during one of his occasional visits to St. Louis, informed the doctor of the insured's desire, as well as of the fact that he had been gassed in the war, and asked the doctor to "look him over" for the purpose of determining whether he could pass a medical examination. Dr. Jenny thereupon made a superficial examination of the insured, at the conclusion of which he advised the insured that he might apply for a policy, meaning (it would appear) that if he was passed by the local examiner, such report would be accepted by him as the company's medical director. Being thus advised, the insured proceeded to make application for a policy (though not the one now in suit), and on November 4, 1930, was examined by Dr. Charles M. Bauman, who not only passed him as an acceptable risk, but testified in the trial of this case that he had found no evidence of laryngitis or bronchitis, the diseases or conditions as to which it is claimed that the insured subsequently made material misrepresentations. It was shown, moreover, that Dr. Bauman had been personally acquainted with the insured for some four years at the time he made the particular report to the company, and during all that time had had occasion to see the insured quite frequently when he would bring applicants to the office for physical examinations in connection with business he had solicited.

On July 24, 1931, the insured made application for the policy now in suit, and in his application represented (among other things) that he had not consulted any physicians, nor had he been prescribed for or treated by any physicians, during the preceding ten years for any causes except for the removal of a parotid tumor in 1925; that he did not then have any ailments, diseases, or disorders; that no medical examiner or physician had ever expressed an unfavorable opinion as to his health; that he had never been under observation, care, or treatment in any hospital, sanitarium, asylum, or similar institution except for the removal of the parotid tumor and for a tonsilectomy performed by an army surgeon in 1919; that he did not then have, and had never prior thereto had, any diseases or injuries other than the matters mentioned, except that he had been gassed in the war, from which he had recovered in one month with no after effects; and that he had last consulted a physician in 1925 in connection with the removal of the parotid tumor.

On the same day, that is, on July 24, 1931, the insured was examined by Dr. John C. Salter, one of defendant's local medical examiners, who recited in his report that he had personally known the insured for several years; that the insured impressed him as being healthy and vigorous; that the respiratory murmur was clear and distinct over every part of both lungs; and that the lungs were free from every indication of disease.

On July 30, 1931, defendant issued its policy providing that if the insured died within twenty years from the date of the policy and while the same was in full force and effect, defendant would pay plaintiff, as beneficiary, the sum of $50 a month until the expiration of twenty years from the date of the policy, at which time it further agreed to pay her the sum of $5,000. This action,...