Truitt v. Nat. Life & Acc. Ins. Co.

• Decision Date: 04 May 1942
• Docket Number: No. 20104.,20104.
• Citation: 161 S.W.2d 683
• Parties: SELLIE TRUITT, RESPONDENT, v. THE NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

161 S.W.2d 683

SELLIE TRUITT, RESPONDENT, v. THE NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, A CORPORATION, APPELLANT.

No. 20104.

Kansas City Court of Appeals, Missouri.

May 4, 1942.

Appeal from the Circuit Court of Jackson County. — Hon. Marion D. Waltner, Judge.

AFFIRMED.

McAllister, Humphrey & Broaddus and C.F. Douglass for appellant.

(1) The court erred in refusing to give defendant's instruction, in the nature of a demurrer, offered at the close of all the evidence in the case. Smith v. Missouri Ins. Co. (Mo. App.), 60 S.W. (2d) 730; Wells v. John Hancock Mut. Life Ins. Co. (Mo. App.), 121 S.W. (2d) 172; Smiley v. John Hancock Mut. Life Ins. Co. (Mo. App.), 52 S.W. (2d) 12; Hammers v. National Life and Accident Insurance Co. (Mo. App.), 292 S.W. 1064; Clark v. National Life and Accident Insurance Co. (Mo. App.), 288 S.W. 944. (2) Metropolitan Paving Co. v. Brown-Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815; Buffington v. South Missouri Land Co., 25 Mo. App. 492. (3) The court erred in refusing defendant's instruction lettered G. Jennings v. Cooper (Mo. App.), 230 S.W. 325; Fenton v. Hart (Mo. App.), 73 S.W. (2d) 1034. (4) The court erred in giving plaintiff's Instruction 1. Clark v. Hammerle, 27 Mo. 70; Wingfield v. Wabash R. Co., 257 Mo. 362, 166 S.W. 1041; Norton v. Kowazek (Mo. App.), 193 S.W. 556. (5) The court erred in giving Instruction 2, submitting the issue of penalties and attorney's fees. Non-Royalty Shoe Co. v. Assurance Co., 277 Mo. 399, 210 S.W. 37; Medling v. Abraham Lincoln Life Ins. Co. (Mo. App.), 41 S.W. (2d) 6; Wood v. Kansas City Life Ins. Co., 228 Mo. App. 979, 75 S.W. (2d) 412.

James D. Pouncey for respondent.

(1) The court did not err in refusing to direct a verdict in defendant's favor. Hodges v. The American Ins. Co., 6 S.W. (2d) 72; Williams v. Washington National Ins. Co., 91 S.W. (2d) 131; R.S. Mo. 1939, sec. 5843. (2) Defendant was not entitled to a directed verdict. Keeley v. The Indemnity Co. of America, 7 S.W. (2d) 434; Guerney v. Bore, 32 S.W. 1131; Hartmann v. Owens, 240 S.W. 113; Johnson v. Hudson, 12 S.W. 632.

BLAND, J.

This is an action on a life insurance policy in the sum of $200, issued by the defendant to Mamie Truitt, on November 27, 1939, in favor of the plaintiff, as beneficiary. She died on March 14, 1940. There was a verdict and judgment in favor of plaintiff in the sum of $200, plus 10% or $20, and $250 attorney's fees as penalties on account of an alleged vexatious refusal to pay the amount of the policy on the part of the defendant. Defendant has appealed.

The case was filed before a Justice and there was no pleading filed in the case on the part of the defendant. However, the case was defended in the Circuit Court under a provision of the policy providing that "no obligation is assumed by the company prior to the date hereof and unless on said date insured is alive and in sound health." In this connection, it is insisted that, at the time of the issuance of the policy, plaintiff was suffering from cancer of the cervix, which was unknown to the defendant and that, consequently, she was not in sound health at that time. There was no medical examination made of insured at or before the time of the issuance of the policy.

The only evidence that plaintiff introduced as to the cause of the death of the insured was that contained in the death certificate, reciting that the immediate cause of death was lobar pneumonia.

Defendant introduced the hospital records of Hospital No. Two, in Kansas City, which disclose that insured was treated for cancer there as far back as 1937; that she was in the hospital on May 12, 1939, and at that time she had cancer of the cervix; that on January 4, 1940, she was again in the hospital and at that time there was a hard crater which had replaced the cervix and at that cancer was very definitely fixed in the pelvix in all directions; that the uterus was enlarged; that the crater was 5½ Cm. in diameter and extended into the vaginal wall; that the cancer was treated by X-ray and radium.

Insured was admitted to the hospital again on March 9, 1940, which was a few days before her death therein. At that time she was in a semi-comatose condition. On her admission her condition was diagnosed as carcimona of the cervix. The hospital records also showed the following: "Diagnosis (Final): List diagnoses in order of their importance, Principal Diagnosis first. Carcinoma of Cervix. Cause of death Lobar Pneumonia. Condition on discharge — Deceased. Date of discharge 3-14-40."

The physical examination of the deceased during the time that she was in the hospital on this last occasion shows: "Head — N Mouth Herpes over lips and mucous membrane. Neck — N. Chest asculation compressed breathing over both apices. Moist rales at both lung fields. Breast atrophied. Abdomen no distention but marked tenderness in lower pelvis. No masses felt. Genitilia: Cervix eroded away. Remaining cervical tissue is firm in consistency and has a moth eaten appearance, few blood clots present. Extremities emaciated. Impression. (1) Proven case of carcinoma of the cervix (2) Bordering uremia, (3) Lobar Pneumonia."

Defendant introduced the proofs of death furnished it by plaintiff, which show that the cause of the death of the insured was lobar pneumonia and that she was afflicted at the time of her death with carcinoma of the cervix.

No physician testified save Dr. Casebolt, a witness for defendant. This witness did not see insured during her lifetime, but examined the hospital records after her death. He testified that these records disclose that the immediate cause of the death of insured was cancer of the cervix and that the terminal cause was pneumonia; that under the law the death certificate should have so stated but that the "full information was not put on" the death certificate; that cancer is a slow progressive disease; that the condition of insured's cancer at the time of her death showed that it was in an advanced stage and had existed for three or four years; that she could have been in sound health at the time the policy was written; that the primary cause of her death was cancer; that about 90% of chronic diseases terminate in pneumonia.

Defendant's evidence showed that it did not know that insured had cancer until the proofs of death were furnished it by plaintiff; that at that time it tendered to plaintiff all of the premiums that had been paid upon the policy and kept the tender good.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given for the reason that insured was not in sound health at the time the policy was issued. The burden of showing that the death of insured was caused or contributed to by cancer was upon the defendant. [Wilson v. K.C. Life Ins. Co., 128 S.W. (2d) 319.]

It is well settled that a provision of a policy that it should be void unless insured is in sound health on the date it is issued are matters of representation, only, under section 5843, Revised Statutes Missouri, 1939. Under the provisions of this section, unless it appears that at the time of the issuance and delivery of the policy that insured was afflicted with a disease or diseases which caused or contributed to her death, defendant cannot defeat recovery upon the theory of misrepresentations and, whether or not such was the fact, is a question for the jury, unless it be foreclosed by an admission of the plaintiff wholly unexplained or uncontradicted by other evidence. [Hodges v. American Nat'l Ins. Co., 6 S.W. (2d) 72, 76.] This rule is modified when hospital records are involved to the extent that such records are conclusive as to the facts which they contain unless they are contradicted or impeached. In other words, they are...