Acuff v. New York Life Insurance Co.
| Decision Date | 11 March 1922 |
| Citation | 239 S.W. 551,210 Mo.App. 356 |
| Parties | GEORGIA ACUFF, Respondent, v. NEW YORK LIFE INSURANCE COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot County Circuit Court.--Hon. Sterling H McCarty, Judge.
REVERSED.
Judgment reversed.
Jones Hocker, Sullivan & Angert and Ward & Reeves for appellant.
(1) The first five assignments of error really involve but one question, and that is whether or not it was the duty of the trial court to direct a verdict for defendant. (a) The respondent relies upon the proposition of law that in insurance cases the plaintiff makes a prima-facie case by the introduction in evidence of the policy sued upon, and making proof of death; and that the plaintiff having made a prima-facie case the trial court can never thereafter direct a verdict for defendant. Hay v. Bankers Life Co., 231 S.W. (Mo. App.) 1035; Keller v. Supply Co., 229 S.W. (Mo. Sup.) 173; Lafferty v. K. C. Casualty Co., 229 S.W. (Mo. Sup.) 750; Trust Co., v. Hill, 223 S.W. (Mo. Sup.) 434; Rasch v. Bankers Life Co., 201 S.W. (Mo. App.) 919; Quissenberry v. Steward, 219 S.W. (Mo. Sup.) 625; State ex rel. v. Reynolds, 277 Mo. 14; Harris v. Insurance Co., 248 Mo. 318; Goodin v. Modern Woodmen, 194 Mo.App. 666; Bange v. Supreme Counsel, 179 Mo.App. 21; Kelly v. K. of F. M., 179 Mo.App. 608; Troll v. Home Circle, 161 Mo.App. 719; Winn v. Modern Woodmen, 157 Mo.App 1; Gannon v. Gas Co., 145 Mo. 502. (2) But the pleadings having narrowed the issues to the question of fraud in the surrender of the policy, the burden of proof to establish this allegation of fraud was upon the plaintiff. As plaintiff offered no proof of fraud the verdict should have been directed for defendant. Vlates v. Catsigianis, 202 S.W. (Mo. App.) 44; Flood v. Bush, 165 Mo.App. 142; Gilbert v. Sietz, 170 Mo.App. 569; Paper Co. v. Publishing Co., 172 Mo.App. 495; Avory Co. v. Powell, 174 Mo.App. 628; Brown v. Ry. Co. 187 Mo.App. 104; Gass v. Evans, 244 Mo.App. 329; Kansas City v. Woerishoeffer, 249 Mo. 1; Troll v. St. Louis, 257 Mo. 626. (3) Besides, the matters alleged to have been misrepresented, that is, that insured had tuberculosis, being equally within the knowledge of the party to whom the representation was made, even through untrue, does not constitute fraud justifying the recission of the release. Davis v. Phoenix Ins. Co., 81 Mo.App. 264; Bradford v. Wright, 145 Mo.App. 623; Brown v. Railway, 187 Mo.App. 104; Hines v. Royce, 127 Mo.App. 718; Duffy v. Metropolitan Ins. Co., 94 Me. 414, 47 A. 905. (4) The plaintiff is precluded from setting aside the release or surrender of the policy on account of fraud, because she did not, prior to the institution of this suit, tender back to defendant the consideration for the surrender of the policy; and a tender after institution of suit (though there was none in this case except a conditional one pleaded in the reply) is too late. Boehm v. American Patriots, 172 Mo.App. 104; Loveless v. Cunard Mining Co., 201 S.W. (Mo. App.) 375; Reid v. Railway, 187 S.W. (Mo. Sup.) 15; Reed v. Gill & Sons, 201 Mo.App. 457; Wessel v. Waltke & Co., 190 S.W. (Mo. App.) 629. (5) The right to change the beneficiary, being reserved in the policy, the insured may change the beneficiary at will, and without the consent of the beneficiary. When such power is reserved in the policy the insured has no vested interest in the policy, but only a conditional interest. McKinney v. Ins. Co., 270 Mo. 305; Robinson v. Ins. Co., 168 Mo.App. 259; Clarkston v. Metropolitan Ins. Co., 190 Mo.App. 624; Missouri State Life Insurance Co. v. Cal. State Bank, 202 Mo.App. 347; Cornell v. Ins. Co., 179 Mo.App. 420. (6) "An affirmative defense, as to which the burden of proof is on defendant, may be made sufficiently strong by clear and unequivocal verbal evidence, that, if same is not contradicted or impeached, the court will direct a verdict for defendant." Downs v. Horton, 230 S.W. (Mo. Sup.) 108; Kazee v. K. C. Ins. Co., 217 S.W. (Mo. App.) 339; Guthrie v. Holmes, 272 Mo. 215; Calhoon v. Mining Co., 209 S.W. (Mo. App.) 320; Vallery v. Hesse Bldg. Co., 211 S.W. (Mo. App.) 95; Ensign v. Crandall, 231 S.W. (Mo. App.) 675; Gates v. Ins. Co., 218 S.W. (Mo. App.) 927; Brunswick v. Ins. Co., 278 Mo. 173-6; Richey v. W. O. W., 163 Mo.App. 235; Rubeotton v. Telegraph Co., 194 Mo.App. 234; Bank v. Hainline, 67 Mo.App. 483; Moore v. Telegraph Co., 164 Mo.App. 165; Guffey v. Railway Co., 53 Mo.App. 462; Morgan v. Durfee, 60 Mo. 469.
N. C. Hawkins, for respondent.
(1) The beneficiary may recover notwithstanding surrender of the policy by the insured. Schoenholz v. New York Life, 175 N.Y.S. 684; Hiward v. John Hancock Life Ins. Co., 183 N.Y.S. 80; Taff v. Smith, 103 S.E. 551 (S. C.); Rumsey v. New York Life, 59 Colorado, 71; Holder v. Prudential, 57 S.E. 853 (S. C.). (2) After a prima-facie case has been made for the plaintiff, by the pleading or the evidence or by both, as here, it is a usurpation of authority to direct a verdict for defendant, except in cases where the defendant's evidence is admitted to be true, or sustained by documentary evidence which the opposite party is estopped to deny. Warren v. Ins. Co., 182 S.W. 96; Bryan v. Wear, 4 Mo. 106; Woods v. Ass'n, 50 Mo. 116; Lange v. Railway, 208 Mo. 458; Ice Co. v. Egg Co., 259 Mo. 693; Peterson v. Railway, 265 Mo. 479-80. (3) And this is true even though a plaintiff's case in part may rest upon a presumption of law, for such a presumption never takes flight and is always for the jury, in the presence or absence of proof. State ex rel. v. Ellison, 268 Mo. 243-44; Brooks v. Roberts, 220 S.W. 13; Linderman v. Carmin, 255 Mo. 62.
--Action upon a life insurance policy. Plaintiff recovered and defendant appealed.
The petition alleged that on September 9, 1914, defendant delivered to plaintiff's husband, DeCalb Acuff, its contract and policy of life insurance dated August 31, 1914, and numbered 4718927 whereby it insured the life of said DeCalb Acuff in favor of plaintiff in the sum of $ 2000. That the annual premium was $ 53.98 and that the first year's premium was paid at or before the time of delivery of the policy. That defendant had obtained possession of said policy and refused to deliver same back to plaintiff and she was therefore unable to file the same with her petition. That DeCalb Acuff died February 22, 1916, and demand of payment of the policy had been made upon defendant and payment refused.
The amended answer contained first a general denial; second, admitted that a policy was issued to Acuff about September 9, 1914, then alleged that the policy provided that the insured might at will change the beneficiary and that on or about January 11, 1915, he did change it and made the same payable to his executors and administrators; third, that in consideration of the payment to said Acuff of $ 53.98 on January 12, 1915, the policy was surrendered to defendant by Acuff for cancellation; fourth, that the second annual premium of $ 53.98 due August 31, 1915, had not been paid and by the terms of the policy it had lapsed.
By reply plaintiff denied all new matter of the answer, denied specifically that the policy gave Acuff the right to change the beneficiary or that he had changed it. Denied that he had received from defendant the premium paid by him or had surrendered the policy for cancellation and denied that the policy had lapsed for non-payment of premium. Further replying, plaintiff alleged that the defendant undertook to deprive plaintiff of her rights under the policy and to deprive said Acuff of the policy, and to accomplish such result, falsely and fraudulently represented to Acuff that the policy was void and unenforceable and that nothing would be paid on it in case of death. That said Acuff had been afflicted with tuberculosis at and prior to the time of applying for the insurance and desired to have the policy returned to it for cancellation which Acuff had refused to do according to plaintiff's last information concerning the matter. That she did not know what was done between defendant and Acuff in relation to a surrender of the policy or its cancellation but that she was always opposed to its surrender or cancellation or a change of beneficiary and if anything of that kind was done, it was induced by the fraud of defendant. She then tendered back all that defendant had paid, if anything, to Acuff to secure such surrender and cancellation.
Plaintiff proved the issuance and delivery of the policy to Acuff and payment of the first year's premium and the death of the insured; demand of payment before filing suit and that this suit was filed September 4, 1920. Plaintiff then introduced the first answer of defendant filed November 22, 1920. There was no material difference between the allegations of that answer and the amended answer above. The plaintiff then testified to the marriage of herself and Acuff in 1907 and his death on February 22, 1916. That at the time the policy was issued, they lived at Dearing, Missouri. Sometime thereafter, they moved to Colorado where they lived until May or June prior to his death, and then moved back to Missouri and remained in this State until he died. That a letter had been written by the defendant to her husband while they lived in Colorado which she could not produce because she could not find it, but she had read the letter and it stated to her husband that they would send a man to take up the policy and if he did not give it to him, that he would lose the policy and lose all the money he had paid. That a representative of defendant had come to see Mr. Acuff in Colorado but she did not know what had passed between them; that before she went...
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