176 Mo. App. 635 | Mo. Ct. App. | 1913
This is an action to recover certain indemnities under a policy of health insurance issued by the defendant to plaintiff on November 7, 1908, providing for an indemnity for certain losses enumerated in the policy caused exclusively and directly by any disease or illness while the policy should be in force. The policy further provided for the payment to plaintiff of a certain amount for loss of time while confined in a hospital or at his residence, etc., and contained the further provision that, if the disease or illness should necessitate any of certain enumerated surgical operations, an additional indemnity of a certain amount as for surgeon’s fees would be paid. Among these enumerated operations was a “cutting operation for a radical cure for abdominal hernia;” an indemnity of $200 being provided for surgeon’s fees for such an operation.
The plaintiff alleges that he contracted a disease or illness, within the terms of the policy, to-wit, an abdominal hernia, by reason of which an operation upon him became necessary and was performed; that he was confined in a hospital for a period of thirty-seven days* and thereafter confined within his resi
The defenses set up in the answer of which we need take notice were that hernia was not a disease, or the result of a disease, within the meaning of the policy, but that it resulted directly from external, violent and accidental means; that the hernia in question was not contracted while the policy w'as in force, but that it existed prior to the application therefor; and ■that plaintiff was guilty of a breach of warranty with respect to the statements made by him in the application for the policy.
♦The cause was tried before the court and a jury, resulting in a verdict and judgment for plaintiff for. $563, and the defendant has duly prosecuted its appeal to this court.
The evidence discloses that .the plaintiff, at the time of the trial, was a young man twenty-nine years of age, of good general health and physique, and accustomed to athletic exercises of various .sorts; that in March, 1908, he was operated upon by Dr. Ernst Jonas of the city of St. Louis, for appendicitis, from which he completely recovered; that, during the latter part of the summer of 1908, he had at times a dragging, drawing or numb sensation in the right groin, some three inches below the appendicitis scar, which sensation it seems he felt for the first time, after climbing a tree; that the plaintiff returned to the city of St. Louis in the latter part of September or the first part of October of that year, and that, in accordance with a request previously made by his physician, Dr. Jonas, he called upon the latter to be examined, at which time;
The appellant insists that its demurrer to the 'evidence should have been sustained. This assignment of error is predicated upon the idea that the plaintiff was suffering from the hernia prior to the date upon which the policy was issued, whereas the policy insured only against illnesses commencing .after such day; and is based upon the further ground that the evidence showed beyond dispute a breach of warranty, in that plaintiff, at the time he applied for the policy, was in fact suffering from the hernia, whereas he stated in the application that he was free from any “functional or organic disease, mental or physical disorder, defect,” etc., and in that he had consulted a physician at a time other than that mentioned in his application.
As the learned trial judge states in his memorandum filed in overruling defendant’s motion for a new trial, there were false issues raised in the case below. One of these was whether the hernia in question was due to accident or disease. Much of the testimony of the learned medical experts who testified in
The other issue to which the learned trial judge refers in his memorandum relates to the question of when the hernia can be said to have begun, and the effort to distinguish between incipient, incomplete and complete hernia. It is appellant’s contention that the plaintiff was, as a matter of fact, suffering from the hernia at the time that he felt the dragging and numb sensation in his right groin while away on his vacation in the summer o-f 1908; that the disease, (regarding hernia as such) had its beginning prior to the
From the testimony it appears that one may have what is called incipient hernia, or a predisposition thereto, without being conscious thereof; and that one may have. what the medical, experts call incomplete hernia without its existence being readily discoverable, if discoverable at all, except by a medical expert. And it further appears that either of the above stages may exist, without complete hernia ever developing. By
However, the case was tried upon the theory that this question was one for the determination of the ■jury, under the expert testimony adduced pro and con thereon. This testimony was ample to warrant a finding that the hernia was not in existence at the time of the issuance of the policy, within the meaning of its terms, and we are concluded by the verdict of the jury with respect thereto. What we have said disposes of' the alleged breach of warranty by plaintiff, in that he was suffering from the hernia when he applied for the policy, so far as concerns the demurrer to the evidence.
As to plaintiff not having revealed the visit to his physician upon his return from his vacation in the autumn of 1908, it seems that this visit was made in compliance with a previous request by the physician, who evidently thought it advisable to see and examine plaintiff at that time because of the prior operation for appendicitis. The latter was fully revealed by plaintiff ; and it cannot be said that he falsely a'nswered the question regarding having consulted a physician, within the meaning and intendment thereof.
We think that the demurrer was well ruled.
Error is assigned with respect to an instruction given for plaintiff which told the jury that there may have been “premonitory symptoms of or a predisposition to hernia in plaintiff which had not arrived at a stage of being the disease itself;” and that “mere premonitory symptoms of or a predisposition to
• The appellant complains also of the refusal of the court to give an instruction offered by it to the effect that if the jury believe from the evidence that the .hernia was the result of an accidental injury, or was produced by external, violent or traumatic force, and not the result of a disease, then the plaintiff was not entitled to recover. That this instruction was prop-' erly refused follows from what we have said above. The defendant having in the contract classified hernia as a disease, and indemnified against it as such, it could not assume a position inconsistent therewith.
The instructions taken as a whole were quite as favorable to the defendant as it could require. There appears to be no dispute as to the duration of the disability of plaintiff, and the amount of the verdict is not complained of. We see no reversible error in the record, and the judgment should be affirmed. It is so ordered.