Harms v. Fidelity & Casualty Co. of New York

• Decision Date: 19 May 1913
• Parties: MARIE HARMS, Respondent, v. FIDELITY & CASUALTY CO. OF NEW YORK, a Corporation, Appellant
• Court: Kansas Court of Appeals

157 S.W. 1046

172 Mo.App. 241

MARIE HARMS, Respondent, v. FIDELITY & CASUALTY CO. OF NEW YORK, a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

May 19, 1913

Appeal from Saline Circuit Court.--Hon. Samuel Davis, Judge.

Judgment affirmed.

Rosenberger & Reed, Barbee & Roberts for appellant.

The compromise of a disputed claim, even where the amount is liquidated by contract, is always a sufficient consideration for the release of such part of the claim as is in excess of the amount actually paid under the compromise. King v Life Ins. Co., 36 Mo.App. 128; Marshall v Larkin, 82 Mo.App. 635; Pickel v. Chamber of Commerce, 10 Mo.App. 191; Reilly v. Chouquette, 18 Mo. 220; Wood v. Telephone Co., 223 Mo. 537; Coal Co. v. Coal Co., 127 Mo.App. 320; Coal Co v. St. Louis, 145 Mo. 651; Livingston v. Dugan, 20 Mo. 102; Chamberlain v. Smith, 110 Mo.App. 657; 1 Ency. of Law & Practice, 636, 8 Cyc. 509. (2) It has been uniformly held from the earliest times that even where there is a liquidated sum admittedly owing, yet there is adequate consideration for a release of the whole amount when a part of it is paid before the debt is due. While, of course, there was no indebtedness admitted in this case, there being a dispute as to whether anything at all was owing, yet even if the defendant had admitted the entire correctness of plaintiff's claim for the full $ 2500, yet the making of settlement in advance of the time when payment could have been demanded is in itself sufficient consideration, without more, to support the release. 1 Am. & Eng. Ency. of Law (2 Ed.), 416; 34 Cyc. 1052, note 52; King v. Aetna Ins. Co., 36 Mo.App. 128; Coal Co. v. St. Louis, 145 Mo. 656; Riley v. Kershaw, 52 Mo. 224; Pinnels Case, 5 Coke's, 117A; Weiss v. Marks, 206 Pa. St. 513; Bank v. Shook, 100 Tenn. 436; Boyd v. Moats, 75 Iowa 151; Marshall v. Bulard, 114 Iowa 462; Kirchoff v. Voss, 67 Tex. 320; Burch v. Hubbard, 48 Ill. 164; Warren v. Skinner, 20 Conn. 559; Rose v. Hall, 26 Conn. 392; Barry v. Goodrich, 98 Mass. 335; Schneider v. Long, 29 Minn. 254; Fertilizer Co. v. Dunan, 91 Md. 144.

Reynolds & James, Gilbert Lamb and Roy W. Rucker for respondent.

(1) Even though it is admitted that August Harms came to his death as the result of a self-in-flicted gunshot wound, this is no defense, and therefore the sum due this respondent was liquidated. Logan v. Fidelity & Casualty Co., 146 Mo. 114. (2) Where the demand is fixed or liquidated the acceptance of a sum less than the whole, though tendered in full, will not discharge the debt, since there is no consideration. Winter v. Cable Co., 160 Mo. 159; Willis v. Gammill, 67 Mo. 730; Riley v. Kershaw, 52 Mo. 226; Tucker v. Dolan, 109 Mo.App. 452; Crowder v. Casualty Co., 115 Mo.App. 540; Chamberlain v. Smith, 110 Mo.App. 660; Banking Co. v. Baker, 90 Mo.App. 660; Goodson v. Masonic Association, 91 Mo.App. 351; School Board v. Hull, 72 Mo.App. 403; Biddlecom v. Assurance Corporation, 152 S.W. 103; 34 Cyc. 1052; Insurance Co. v. Rentia, 153 S.W. 14.

OPINION

TRIMBLE, J.

--Plaintiff is the widow of August Harms, deceased, and is the beneficiary in a policy of insurance for $ 2500 held by him in the defendant company dated August 3, 1910, whereby it insured said Harms for one year against death by external violent means. There was a clause in the policy providing that if the assured committed suicide, the company would pay only $ 500; and a statement in the schedule of warranties that the assured's habits of life were correct and temperate.

Harms died on April 7, 1911, as the direct result of a gunshot wound. On April 13, 1911, the company paid plaintiff $ 1000, and on October 10, 1911, this suit was instituted to collect the remainder due on the policy.

The answer pleaded a compromise and release of plaintiff's claim obtained April 13, 1911, when the $ 1000 was paid, and alleged that said $ 1000 was in full settlement of plaintiff's claim, and that plaintiff surrendered the policy and released defendant from all further liability. The reply set up the defense that the pretended release was without consideration and was fraudulently and wrongfully procured from plaintiff, which pleading is authorized by section 1812, Revised Statutes of Missouri, 1909.

From the foregoing it can be readily seen that the entire trial was over the validity of the alleged release. The circumstances under which it was obtained are as follows: After the death of her husband, Mrs. Harms left the policy with Mr. Anderson, cashier of one of the banks in Keytesville where she lived, with instructions to collect same for her. Anderson notified the company of the assured's death and asked for the proper blanks on which to make affirmative proof thereof. Instead of complying with this request, the company sent its chief special claim agent, one M. A. Shipley, to Keytesville to adjust the loss. He went to Mrs. Harms' home and informed her of his business and was told by her to take the matter up with her representative Mr. Anderson. Shipley thereupon called on Anderson who demanded the $ 2500. Shipley said the company was liable for only $ 500 under the terms and conditions of the policy. This Anderson refused to accept and Shipley then offered $ 600 which Anderson also refused. After considerable discussion over the matter, Shipley left the bank agreeing to return to Keytesville in about ten days and in that time Anderson was to see Mrs. Harms and discuss the matter of a settlement with her after she had some-what recovered from the shock of her husband's death. Instead of leaving Keytesville, however, Shipley went back to Mrs. Harms' home and called her attention to the clause in the policy concerning suicide and also the statement in the schedule of warranties that assured was of correct and temperate habits, and read these over to her. He then informed her that her husband was a drunkard, that he had committed suicide and had said, openly and for a long time, that he would commit suicide. He further told her that if she did not accept the money he had offered it would be necessary for her to sue, and all these facts would come out in court and that even if she won, she would get nothing because the lawyers would get it all. Mrs. Harms is a German, unable to read English and not able to thoroughly comprehend it or to fully express herself in it. Being disturbed and unnerved by what Shipley told her, and perplexed as to what to do, she called an older German woman, Mrs. Hansman, over the telephone and asked her for advice, and then went up to Mrs. Hansman's house some half mile or more away. She testifies that she was frightened at Shipley's manner and was afraid of him and went to Mrs. Hansman's to get rid of him. But he told her he would go with her. On the way Shipley became friendly toward her and said that as she was a widow with five children he would be liberal and would pay her $ 1000, or $ 500 more than she was really entitled to. And upon their arrival at Mrs. Hansman's, Shipley again called attention to the suicide clause and the temperate habits clause, mentioned Mr. Harms' alleged drunken habits and said that he had committed suicide, and renewed his offer of $ 1000. Mrs. Hansman was at first unwilling to advise the plaintiff and sent for Mr. Ray, the assistant cashier of another bank, rival to the one Anderson was connected with. This assistant cashier would not himself advise Mrs. Harms but had a private talk with Mrs. Hansman and after the private talk Mrs. Hansman advised her to accept Shipley's proposition. During this conference between the four of them Shipley said he had received a telegram from the company authorizing him to pay her $ 1000. Upon request he showed this telegram to Ray, the assistant cashier, but no one informed Mrs. Harms that the telegram was not one received by Shipley after he arrived in Keytesville, nor that it was not sent to him at all, but was one from the company to the St. Louis office instructing that branch to send Shipley to Keytesville with power to pay Mrs. Harms any sum not exceeding $ 1000 upon the execution by her of a release of all further liability, such release to be drawn up by an attorney in St. Louis before Shipley started to Keytesville. Finally, after much talk and discussion of the matter and much worry and hesitation on the part of Mrs. Harms as to what she should do, she was induced to go to Anderson and get the policy and take it to the other bank. All repaired to this bank together except Mrs. Hansman. There the release was read over, and after Mrs. Harms had hesitatingly signed it, the agent asked Ray and Taylor, another assistant cashier, to witness her signature. The latter in testifying as to what took place when Mrs. Harms signed the release said:

"When they first came in and were talking about it, she didn't want to sign this release, and he (Shipley) kept insisting on it, and it seems that Mr. Ray was kind-a trying to influence her to sign it, and they went ahead fixing it up the same, anyway, and finally the man drew his wallet and counted out this money, and pushed the release over to her and told her to sign her name there. She still hesitated like she thought she was being forced, and then went ahead and signed it.

"Q. Then she saw the money and went ahead and took it? A. No, sir; she never did want to sign it. It looked like she signed it against her will. Of course I realized that was her own fight, but that was the way it looked to me.

"Q. You don't mean he forced her to sign it? A. Oh, no."

The release, over which this controversy rages, contained, in a number of paragraphs and under many whereases, statements to the effect that the policy for $ 2500 was issued to Harms and that Mrs. Harms was the beneficiary; that Harms died from...