White v. American Life & Accident Ins. Co. of St. Louis

• Decision Date: 04 February 1936
• Docket Number: No. 23627.,23627.
• Citation: 90 S.W.2d 118
• Court: Missouri Court of Appeals
• Parties: WHITE v. AMERICAN LIFE & ACCIDENT INS. CO. OF ST. LOUIS.

90 S.W.2d 118

WHITE v. AMERICAN LIFE & ACCIDENT INS. CO. OF ST. LOUIS.

No. 23627.

St. Louis Court of Appeals. Missouri.

February 4, 1936.

Rehearing Denied February 18, 1936.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be published in State Reports."

Action by Beatrice White against the American Life & Accident Insurance Company of St. Louis. From an adverse judgment, the defendant appeals.

Affirmed.

Martin Farrow, of St. Louis, for appellant.

Anthony Canzoneri, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, the beneficiary, upon a policy of insurance issued upon the life of her deceased husband, William O'Malley. Upon a trial to a jury, a verdict was returned in plaintiff's favor for the aggregate sum of $602.50; and, from the judgment rendered in conformity therewith, defendant has duly appealed.

Suffice it to say of the pleadings that defendant's liability under the policy was defended against upon the theory of a breach by the insured of the sound-health provision of the policy. In other words, it was defendant's position that on October 5, 1931, the date of the issuance of the policy, the insured was suffering from a duodenal ulcer, which continued to exist and thereafter caused or contributed to his death on July 9, 1933, thereby avoiding the policy because of the usual provision contained therein that the policy should not take effect if the insured was not in sound health on the date of its otherwise effectiveness.

There was a plea by defendant that in the application for the policy, which by express provision was made a part of the contract, the insured had represented that his health was good and that no physical infirmity existed; that such representation was false in the respect heretofore pointed out; that the company, having no knowledge of the falsity of the insured's representations, had relied upon the same in the acceptance of his application; and that, if it had known of his unsound health, it would not have issued the policy.

The evidence upon the question showed generally that the insured had first entered the hospital on November 17, 1930, which was approximately eleven months before the issuance of the policy in suit. On this occasion he came to the hospital simply for an examination, and remained there for only twenty-four hours, the examination revealing the presence of a duodenal ulcer.

The insured was again admitted to the hospital on April 3, 1933, which was one and one-half years after the issuance of the policy; and upon his entry gave a history that following his examination of November 17, 1930, he had suffered occasional attacks of abdominal pains in the right upper quadrant of the abdomen, most but not all of which he had been able to relieve by the use of sodium bicarbonate. A pre-operative diagnosis again disclosed the presence of the duodenal ulcer, and a posterior gastroenterostomy was performed, by which is meant that a portion of the small intestine which was not diseased was attached to a newly made opening into the stomach so as to prevent the further passage of food through the duodenum in the regular course. On this occasion the insured was discharged from the hospital on April 23, 1933, after having been confined in it for a period of twenty days.

On June 28, 1933, he again entered the hospital for treatment for his condition, and he remained there as a patient until his death on the following July 9th, which resulted, so the death certificate disclosed, from the duodenal ulcer as the principal cause.

For its chief insistence defendant argues that the court erred in submitting the case to the jury as against the showing in evidence that before the date of the policy the insured was afflicted with a duodenal ulcer which later concededly contributed to his death, the event upon which the policy became due and payable. Of course, it goes without saying that, if defendant correctly views the evidence as having conclusively disclosed a breach of the sound-health provision of the policy, that is, that the insured had misrepresented the condition of his health at the time of his application for the policy and that he was in truth not an insurable risk at the date of its issuance, then the court, under the facts of the case, should have directed a verdict for defendant; but otherwise, if the evidence was conflicting rather than conclusive upon the question of the sound health of the insured at the effective date of the policy, then the issue of defendant's liability under the same was properly one for the jury to determine, just as was held by the court in refusing the demurrer to the evidence and in submitting the case under plaintiff's principal instruction. Kirk v. Metropolitan Life Insurance Co. (Mo.Sup.) 81 S.W.(2d) 333; Hodges v. American National Insurance Co. (Mo.App.) 6 S.W. (2d) 72; Mudd v. John Hancock Mutual Life Insurance Co. (Mo.App.) 39 S.W.(2d) 450.

Now the facts which have heretofore appeared regarding the steps taken by the insured to relieve against the one or more duodenal ulcers from which he suffered were read into the case by defendant from hospital records, and it is wholly upon such showing that defendant bases its contention that a breach by the insured of the sound-health provision of his policy appeared in the case as a matter of law.

It is indeed true, just as defendant suggests, that hospital records, in so far as they are kept pursuant to statutory requirement, are not only admissible in evidence but, unless contradicted or impeached, are conclusive as to the facts recited therein (Smith v. Missouri Insurance Co. (Mo. App.) 60 S.W.(2d) 730); and it is likewise the fact that in this particular case the recitals in the records were not contradicted by plaintiff's oral evidence regarding the physical appearance and habits of the insured, which evidence came purely from lay witnesses who were confessedly unfamiliar with the symptoms of duodenal ulcers. Kirk v. Metropolitan Life Insurance Co., supra; Smiley v. John Hancock Mutual Life Insurance Co. (Mo.App.) 52 S.W.(2d) 12.

It necessarily follows, therefore, that for the purposes of this case the matters disclosed on the face of the records in question are to be taken as true, but even so we think it is clear that no breach of the sound-health provision of the policy may be said to have appeared as a matter of law. This for the reason that, while those records did disclose that the insured had suffered from a duodenal ulcer some eleven months prior to his application for the policy, and that he again was found suffering from a similar ulcer one and one-half years after the issuance of the policy, yet they did not in the least purport to disclose...