Wiener v. Mutual Life Ins. Co.

• Decision Date: 07 April 1943
• Docket Number: No. 26270.,26270.
• Parties: WIENER v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

170 S.W.2d 174

WIENER v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 26270.

St. Louis Court of Appeals. Missouri.

April 7, 1943.

As Modified on Denial of Rehearing April 23, 1943.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be reported in State Reports."

Action by Meyer Wiener against the Mutual Life Insurance Company of New York for benefits under total and permanent disability provisions of a life policy. Verdict and judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Burnett, Stern & Liberman, of St. Louis, for appellant.

Jones, Hocker, Gladney & Grand and Lon O. Hocker, all of St. Louis, for respondent.

HUGHES, Presiding Judge.

This is a suit for recovery of benefits under total and permanent disability provisions in a life insurance policy issued to appellant by respondent company. The trial in the circuit court resulted in a verdict for the defendant, and from the judgment entered on such verdict the plaintiff has appealed.

The policy sued on was issued July 1, 1919, for the face amount of $10,000 and contained the provision that if the insured, after payment of premiums for at least one full year, provided that all past due premiums have been duly paid, shall before attaining the age of sixty years at his nearest birthday and while this policy is in full force furnish due proof to the company at its home office that he has become totally and permanently disabled by bodily injury or disease, so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, or from following any gainful occupation, and that such disability has then existed continuously for not less than sixty days, the company will, during the continuance of such disability waive payment of each premium as it thereafter becomes due, commencing with the first premium due after receipt of said due proof of such disability, and one year after the anniversary of the date of issue of this policy next succeeding the receipt of said due proof, the company will pay to the insured, if then living and such disability still continues, a sum equal to one-tenth of the face amount of the policy, (but not including dividend additions) and a like sum on each such anniversary thereafter, if the insured be then living and such disability still continue.

On March 24, 1936, plaintiff, who is by profession an ophthalmologist or oculist, suffered a heart attack while on the train going to St. Joseph, Missouri, to deliver a lecture before the St. Joseph Clinical Society; he was returned to St. Louis by ambulance and taken to Barnes Hospital he was confined to the Hospital for about eight weeks. It was found that plaintiff had suffered a coronary thrombosis, — a blocking of one of the arteries supplying the heart muscles. From the hospital he went to his home in St. Louis, where he remained until June, and then on the advice of his physician, in order to avoid the heat, he went to California for the summer.

A claim was filed under the policy with the defendant company; the company waived payment of the premium due on July 3, 1936. Commencing with July 3, 1937, in addition to waiving or refunding the premium, the company paid plaintiff $1,000 annually until July, 1941. Plaintiff paid the premium of $377 due July 3, 1941, which has not been refunded and the company did not make the payment of $1,000 as of July 3, 1941, and this suit followed for the disability payment and the premium aggregating $1377.

One of the principal contentions of appellant is that there was no substantial evidence to support the verdict in favor of the defendant, and while this necessitates a review of the evidence, yet, so far as that contention is concerned, we need merely state the evidence, if any, which would support a verdict for the defendant, and not consume time and space in attempting to give a complete resume of the detailed and extended testimony. At the trial of the case the defendant called no witnesses, but by failing to do so it did not necessarily preclude itself of the right to have a jury verdict based on the testimony of the witnesses called by the plaintiff. The court or a jury was not required to accept or reject the testimony of a witness merely because the plaintiff may have subpoenaed him and called him to the witness stand. When the witness goes on the stand he is there to truthfully give his testimony whether it be favorable to one side or the other. The jury are the judges to determine not only the credit and value to be attached to the testimony of any witness, but further to draw any conclusion that can fairly and reasonably be drawn from the testimony of such witness, whether such conclusion is favorable to plaintiff's case or to defendant's case. Appellant's able counsel says in the printed argument: "We know of no case, in which the jury has found against a plaintiff, in which the Court has said that the jury is entitled to disbelieve the evidence where there is no evidence contradictory of the evidence of the plaintiff." But counsel have overlooked the case of Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559, where plaintiff appealed from an adverse judgment and it was held as follows: "The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached."

The theory upon which the defense in this case was based was that the jury had the right to draw the conclusion from the testimony of plaintiff's witnesses that on and after July 3, 1940, Dr. Wiener was not totally and permanently disabled. If the testimony of plaintiff's witnesses, or either one of them, would justify such conclusion, then defendant did have substantial testimony on which to base a verdict in its favor. The rule is that where there is uncertainty arising from a conflict in the testimony, or because the facts being undisputed, fair minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury. Seago v. New York Central R. Co., Mo.Sup., 155 S.W.2d 126. The question in this case was not whether the plaintiff was totally disabled on and after March 24, 1936. The defendant admitted that he was by recognizing its liability and paying benefits up to July 3, 1940. And the question in this case was whether on and after July 3, 1940, Dr. Wiener continued to be totally disabled. The answer to that question could not, from the nature of plaintiff's claim, and the defense interposed, be arrived at or presented by direct and positive testimony. It depended almost if not quite altogether on circumstantial evidence, and reasonable inferences, and expert opinion evidence.

Dr. Wiener's testimony was of little or no aid to the jury in arriving at the ultimate conclusion of whether he continued to be totally and permanently disabled, because he very frankly said that it was on the advice of his doctors that he has never practiced his profession, and that he had no worthwhile opinion as to whether or not he was capable of practicing his profession but has taken the opinion of his doctors. He further said that in a deposition in another case he testified that he was physically able to perform every function and operation of his profession, and mentally able. He testified that since his heart attack he has performed operations on the eyes of dogs and rabbits, and has given lectures before various medical societies, some at distant places, for which he received no pay, and has written a book of over four hundred pages, which he gave to somebody else to publish. That his doctors told him he ought not to go back to work and he accepted their advice and did not go back to work; that every physician whom he consulted, without exception, told him not to go back to practice and that is his only reason. Hence it is clear from Dr. Wiener's testimony that regardless of the acute attack of coronary thrombosis which he suffered on March 24, 1936, he would now be engaged in the practice of his profession except for the advice of his doctors that he should not do so.

Now it is true that Dr. Wiener has been treated or examined by three eminent physicians, who are specialists in diseases of the heart, and who were called as witnesses in the case, and each of them gave lengthy and detailed testimony as to the effect and treatment of coronary thrombosis, and of their observations from examinations of Dr. Wiener, and they gave as their expert opinions that on and after July 3, 1940, Dr. Wiener was totally and permanently disabled and should not return to the practice of his profession. The testimony of these men, learned as they are in their profession, is entitled to great weight. But still, in the end the jurors have the duty of drawing the final conclusion as to the fact at issue, paying due consideration to the instructions of the court as to what is meant, from the legal view point, — not the physicians' view point, — by the words "totally and permanently disabled". And if from the testimony of these doctors, or either of them, fair-minded men may honestly and reasonably draw the conclusion that notwithstanding an acute attack of coronary thrombosis four years before, that Dr. Wiener, on and after July 3, 1940, could perform substantially all of the material acts which are necessary to the prosecution of his profession as an oculist, the jury would have a right to return a verdict for the defendant.

We need only take the testimony of Dr. Strauss, who has been Dr. Wiener's physician all along, and if reasonable inferences may be drawn from his testimony to warrant the conclusion by the jury that Dr. Wiener was not, in contemplation of law, totally and permanently disabled on and after July 3, 1940, the jury had a right to...