Foster v. ætna Life Ins. Co., No. 26233.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtHughes
Citation169 S.W.2d 423
PartiesFOSTER v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN.
Decision Date02 February 1943
Docket NumberNo. 26233.
169 S.W.2d 423
FOSTER
v.
ÆTNA LIFE INS. CO. OF HARTFORD, CONN.
No. 26233.
St. Louis Court of Appeals. Missouri.
February 2, 1943.
Rehearing Denied February 19, 1943.
Certified to Supreme Court February 19, 1943.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by Clara Louise Foster against the Aetna Life Insurance Company of Hartford, Connecticut, on an accident policy. From a judgment for plaintiff, defendant appeals.

Affirmed.

Sullivan, Reeder, Finley & Gaines, of St. Louis, for appellant.

Alexander M. Goodman and A. B. Frey, both of St. Louis (Frey & Korngold, of St. Louis, of counsel), for respondent.

HUGHES, Presiding Judge.


This suit was instituted in the Circuit Court of the City of St. Louis on May 14, 1941, for the balance due plaintiff as beneficiary in a policy of accident insurance issued by the defendant to her husband, Leslie W. Foster, on December 30, 1909. The

169 S.W.2d 424

policy provided for death benefit for accidental death in the sum of $3,000, to be increased at the rate of 10% of the original principal sum for five consecutive years, until the amount of the principal sum or death benefit was $4,500.

The petition alleges that on December 15, 1938, that the plaintiff's husband slipped and fell, while walking up the steps to the front porch of his home and struck his right leg against the steps severely injuring his right knee, and, as a direct result of such injury, he was thereafter totally and permanently disabled until his death on January 25, 1939; that after proof of death, the defendant paid the plaintiff the sum of $3,000, leaving a balance due the plaintiff in the sum of $1,500 on the death benefit and $87.85 for total disability of her husband from the time of his injury until his death, and $60 for surgical services to her husband, making a total of $1,647.85, for which she asked judgment, with interest and for damages and a reasonable attorney's fee for vexatious refusal to pay the loss.

The answer admitted the issuance of the policy, the death of plaintiff's husband, the insured, on January 25, 1939, and the payment by the defendant to the plaintiff of $3,000 and denied all other allegations in the petition. For an affirmative defense it was alleged that after the death of Leslie W. Foster the plaintiff made claim for the principal sum of $4,500, and for $87.85 for total disability, and $30 for surgical services; that the plaintiff contended that Leslie W. Foster's disability and death resulted from a fall which injured his right knee; that upon investigation of the facts the defendant concluded that the death of Leslie W. Foster did not result directly and independently of all other causes from bodily injuries suffered by him, but resulted from disease, that is to say, nephritis and uremia; that thereupon the defendant, in good faith, denied liability, and a controversy arose in good faith as to the liability of the defendant, and that for the purpose of settling said controversy and avoiding litigation the parties agreed upon a compromise and settlement of plaintiff's claim, and the defendant agreed to pay and the plaintiff agreed to accept the sum of $3,000 in settlement of all claims which she had or might have under said policy; that on May 6, 1939, the defendant paid plaintiff by its check or draft the sum of $3,000, and the plaintiff executed and delivered to defendant her receipt and release for said sum in full payment of her claim under the policy.

The reply admits the payment of the sum of $3,000 and the execution of the release and receipt, and seeks to avoid said settlement and release by a denial that a controversy arose in good faith as to the liability of the defendant, and that the parties agreed upon a compromise by the payment of $3,000 in full settlement of plaintiff's claims, and specifically pleads that the purported satisfaction and compromise was invalid for want of consideration.

The case was tried and resulted in a verdict and judgment for the plaintiff for the sum of $1,500, with interest thereon in the sum of $240, and for damages in the sum of $150 and attorneys' fees in the sum of $500, making an aggregate judgment of $2,390.

After unsuccessful motion for new trial, and judgment being rendered, the defendant has appealed to this Court.

After offering in evidence the policy sued on the plaintiff called six witnesses, five of whom were working companions of Leslie W. Foster, all of whom testified that they had known Foster for many years; that he weighed from 175 to 180 pounds; that during all the time they knew him he was healthy, ate heartily, and never complained, and appeared to be in good health; that after his injury he never worked.

The plaintiff testified that she married Leslie W. Foster on April 8, 1903; that he had worked for the St. Louis Post Dispatch for about forty years; that he was always well, never took medicine; enjoyed his meals, and was an active and industrious man; that prior to his injury his health, so far as she could see, was perfect; that on the evening of December 15, 1938, they were returning home from a lodge meeting, and that as her husband was ascending the steps leading to the door of their home he caught his toe on a step and fell to the floor at the top of the steps; that he was helped into the house and antiseptic dressing applied to his injured right leg; that next morning he was taken to the office of Dr. Arthur Gundlach; that he went to the Doctor's office on four or five occasions, and thereafter the Doctor came to the house every day; that he was confined at his home until January 15, 1939, when he was taken to the hospital, where he died on January 25, 1939. That about two weeks after her husband's death she went to the Insurance Company's office and met Mr.

169 S.W.2d 425

Karst, the agent of the Company who had charge of collecting premiums from her husband; she also met Mr. Morrow, an adjuster for the Company, and he told her they had sent the papers in to the home office and had not received any word from that office, and as soon as they did he would let her know. Later Mr. Morrow called her and told her the papers had come in, and that their adjuster, Mr. Sperry, would be in the City and would see them; that she and her son went down to the office and Mr. Sperry was there, and took them in a room; that he had quite a lot of papers in front of him looking them over, and after going over them he told her there wasn't anything coming to her, and she said "Why, my goodness, my policy calls for $4500.00," and he said, "Well, Mr. Karst and your husband were very good friends and we have decided to allow you $3000.00;" that at first he said $1,000, then when she said nothing, he said $2,000, and when she still said nothing he then said $3,000, and then she said "My policy calls for $4500.00," and he looked over the papers again and said "Well, that is all we will pay," and next he said, "You had better take that or you won't get anything;" and she and her son got up and went out and went home. Later someone from the office called her and told her the check was there, and she and her son went down to the office and she was shown a check for $3,000, and she said, "Why, this is $3000.00," and she said she wouldn't sign for it, and as she and her son were leaving Mr. Walden, who was an investigator and adjuster for the Company, came out in the hall after her, and said "Well, this is the best I could do for you, Mrs. Foster;" that on that occasion Mr. Morrow said to her and her son, "There is no doubt in the world but your husband and father would be with you today if he hadn't had this accident." That thereafter, when she was in bed with a bad nervous spell, Mr. Walden and some other gentleman came out, and she got up and dressed, and came in the room, and Mr. Walden said, "Here is the check for you;" that she saw it was only $3,000 and said, "Well, it is only $3000.00;" that Mr. Walden said, "I would advise you, Mrs. Foster, to take the $3000.00;" and he sat there talking to her and he said "You had better take it, Mrs. Foster, because I have known of two other parties that refused the check when it was brought to them and they didn't get anything;" and he said, "One lady she had a son seventeen years old, and that woman didn't take the money, and I told her to take the money, if she didn't she would feel sorry because if she filed suit it would get in the newspapers, it would be exposed what was the matter with her boy;" so then he says, "Well, I would advise you to take it. You may be sorry later on;" and then he went on about her needing money in her hands, and finally she said, "Well, you give it to me, I will sign the receipt for you;" he said he wanted a receipt so he could take it back to the office to show that he had delivered the check, but that he did not tell her it was a release, and she did not read it. She further testified that she never knew that an autopsy had been performed on her husband until it was all over. That in her talk with Mr. Sperry, he did not tell her that their investigation had shown that her husband had died from disease and not as a result of the accident.

Plaintiff's testimony was substantiated by the testimony of her son, Leslie William Foster.

Dr. August F. Henke testified that he saw Leslie W. Foster on August 19, 1938; he had an injury to the lower end of his spine which he had received while on a Public Service Bus; that he examined Mr. Foster to determine whether there was a fracture, and also made a general physical examination, such as urine examination and blood pressure; that he found no albumin or sugar in his urine and nothing wrong with his blood pressure; he was normal for his age; he was suffering from no disease whatever that he could determine; that the examination that he made was a careful one; that Mr. Foster complained of severe pain in the tail bone, but he...

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2 practice notes
  • Butler v. Missouri Ins. Co., No. 26797.
    • United States
    • Court of Appeal of Missouri (US)
    • April 17, 1945
    ...claim, is so thoroughly reviewed by this court in the recent case of Foster v. Aetna Life Insurance Co. of Hartford, Conn., Mo.App., 169 S.W.2d 423, and in the same case by the Supreme Court (Mo.Sup., 176 S.W.2d 482), wherein the principles of law involved were the same as here, that we are......
  • St. Louis-San Francisco Ry. Co. v. Morrison, LOUIS-SAN
    • United States
    • Court of Appeal of Missouri (US)
    • February 27, 1969
    ...is not the result of an honest mistake as to the application of the law to the facts involved. Foster v. Aetna Life Ins. Co., Mo.App., 169 S.W.2d 423, 430(8), trsfd. 352 Mo. 166, 176 S.W.2d 482; Prudential Ins. Co. v. German Mut. Fire Ins. Ass'n, Mo.App., 142 S.W.2d 500, 504(12). Each case ......
2 cases
  • Butler v. Missouri Ins. Co., No. 26797.
    • United States
    • Court of Appeal of Missouri (US)
    • April 17, 1945
    ...claim, is so thoroughly reviewed by this court in the recent case of Foster v. Aetna Life Insurance Co. of Hartford, Conn., Mo.App., 169 S.W.2d 423, and in the same case by the Supreme Court (Mo.Sup., 176 S.W.2d 482), wherein the principles of law involved were the same as here, that we are......
  • St. Louis-San Francisco Ry. Co. v. Morrison, LOUIS-SAN
    • United States
    • Court of Appeal of Missouri (US)
    • February 27, 1969
    ...is not the result of an honest mistake as to the application of the law to the facts involved. Foster v. Aetna Life Ins. Co., Mo.App., 169 S.W.2d 423, 430(8), trsfd. 352 Mo. 166, 176 S.W.2d 482; Prudential Ins. Co. v. German Mut. Fire Ins. Ass'n, Mo.App., 142 S.W.2d 500, 504(12). Each case ......

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