Wash. Nat. Ins. Co. v. Stanton

• Decision Date: 23 November 1942
• Docket Number: No. 9.,9.
• Citation: 31 A.2d 680
• Court: D.C. Court of Appeals
• Parties: WASHINGTON NAT. INS. CO. v. STANTON et al.

31 A.2d 680

WASHINGTON NAT. INS. CO.

v.STANTON et al.

No. 9.

Municipal Court of Appeals for the District of Columbia.

Nov. 23, 1942.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action on an industrial life insurance policy by Marian W. Stanton and Margaret A. Wilson, an infant, by her next friend, Marian W. Stanton against Washington National Insurance Company. Judgment for plaintiff and defendant appeals.

Affirmed.

Arthur H. Clephane, of Washington, D. C. (Walter C. Clephane, J. Wilmer Latimer, and Gilbert L. Hall, all of Washington, D. C., on the brief), for appellant.

Daniel B. Maher, of Washington, D. C. (Dennis Collins, of Wasington, D. C., on the brief), for appellees.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

CAYTON, Associate Judge.

This is an appeal from the Municipal Court for the District of Columbia, from a judgment entered on the verdict of a jury in favor of the plaintiffs who sued as beneficiaries of a policy of industrial life insurance.

The single assignment of error relied upon relates to the refusal of the trial judge to direct a verdict in favor of the defendant upon the whole evidence.

The policy was issued on October 3, 1938, and contained a provision that if the insured had within two years before its date been attended by a physician for any serious disease or complaint, it should be voidable and the liability of the company limited to the return of premiums paid.

The insured died on April 18, 1940, less than six months before the policy would, by its terms, have become incontestable.

The claim of the beneficiaries for the face amount of the policy was rejected by the company on the ground that the deceased had within two years before the date of the policy suffered from a serious disease or complaint, namely, arthritis. The company tendered the return of $49.20, being the total amount of premiums paid in. This was rejected and suit commenced on the policy. At the trial plaintiffs proved the policy and the death of the insured, and rested.

The substance of defendant's testimony was that the insured had for some time suffered from a severe case of arthritis which involved her left shoulder joint, finger joints, and knee joints, with some involvement of her right elbow; and that she had been hospitalized on three different occasions for treatment of the ailment.

A physician called by the defendant testified, in substance, that a patient with the symptoms and in the physical condition revealed by the history of the insured was in fact suffering from a serious disease; that it would prevent her from pursuing her normal everyday occupation and had, in fact, incapacitated this patient; that the various bone changes were permanent, although she might from time to time regain the use of the affected parts; that that ailment would tend to become pregressively worse and she would finally become bed-ridden. His testimony was further that the patient would be bound to know she had a serious disease because of the excruciating pain she would suffer, the long periods of time spent in the hospital, and the incapacitating effect of the ailment.

A sister of the insured, called by defendant, testified that there were many times during the period between July, 1937, and April, 1938, when the deceased could not walk or use her arms, hands, or legs; that the insured told her that she had arthritis but that she did not consider her condition as serious; that later, during the period when the insured lived with her, she could do ordinary household tasks around the house; that they had discussed the situation many times and the insured never regarded her illness as serious; that insured had told her many times that the doctor had told her it was not serious, and that no one had ever died from it, and that it would leave her as quickly as it came upon her, and she felt that was going to happen.

Plaintiff in rebuttal called the physician who attended the insured during 1937 and part of 1938, and during all of the time she was in the hospital. He testified that in the early summer of 1937 she was almost totally incapacitated by arthritis; that he had treated her with some success; and that he placed her in the hospital not because she was actually in need of hospitalization but because he was treating her with sulfa drugs and wanted to keep her under observation. He testified that the ailment was serious only in the sense that it temporarily restricted the motion of certain parts of the body; that it was an illness that would, and did, leave the patient as quickly as it had come upon her; that her condition would not be permanent, and that any incapacity would be of a temporary nature; that the arthritis from which she was suffering was not dangerous to life and that it would not, and did not, shorten her life; and that the patient had made a ‘perfectly marvelous' recovery after she left the hospital in April, 1938, and was able to do ordinary household tasks.

By way of further rebuttal a daughter of the insured testified that during the time her mother was in the hospital in April, 1938, she heard the doctor tell her mother that the illness would be only of a temporary nature and that it would leave her as quickly as it had come upon her.

The insured died at Georgetown Hospital on April 18, 1940, after an operation for fibroma of the cervix. The cause of death was hemorrhage at operation and post-operative shock. It is conceded that the operation and resulting death were in no manner attributable to the prior arthritic condition of the insured.

Upon this showing the trial judge refused a peremptory instruction for the defendant, and refused to limit plaintiffs' recovery to a refund of premiums. He submitted the case to the jury upon instructions to which no exception was taken, and concerning which there is no complaint here.

The question presented is whether upon the whole evidence there was a case to go to the jury.

[1] The policy involved comes within the purview of Title 35, Section 1002, 1940 edition, District of Columbia Code. ¹ The effect of that section is to cast the burden of proof upon the insurer and to require that it establish that the ailment was serious and that the insured knew, or...