Bell v. Kansas City Life Ins. Co.

• Decision Date: 08 May 1934
• Docket Number: No. 22663.,22663.
• Citation: 71 S.W.2d 135
• Parties: BELL v. KANSAS CITY LIFE INS. CO.
• Court: Missouri Court of Appeals

71 S.W.2d 135

BELL v. KANSAS CITY LIFE INS. CO.

No. 22663.

St. Louis Court of Appeals. Missouri.

May 8, 1934.

Rehearing Denied May 22, 1934.

Appeal from Circuit Court, Audrain County; W. C. Hughes, Judge.

"Not to be published in State Reports."

Action by Elva O. Bell against the Kansas City Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Frank W. McAllister and James W. Broaddus, both of Kansas City, and Rodgers & Buffington, of Mexico, Mo., for appellant.

Fry, Hollingsworth & Francis, of Mexico, Mo., for respondent.

HOSTETTER, Presiding Judge.

This is an action on a life insurance policy begun in the circuit court of Audrain county on the 3d of August, 1932. The plaintiff, Elva O. Bell, is the widow of Pearl Bell, deceased, and the beneficiary in the policy sued on.

The petition is in conventional form, setting out the issuance by the defendant of a policy of insurance to Pearl Bell, dated April 11, 1932, whereby it insured his life for a period of five years in the sum of $2,000; that he died on May 11, 1932; and that all the premiums up to the time of his death had been paid and that due notice and proof of death had been given to the defendant and payment demanded, which had been by the defendant refused.

The petition further set up vexatious delay and asked for damages and attorneys' fees by reason thereof.

Defendant's answer admitted the issuance of the policy of insurance and contained a general denial of the other allegations in the petition. By way of affirmative defense the answer set up that Pearl Bell, the insured, made application in writing to defendant for the issuance of said policy, which application was dated March 30, 1932, in which he made the following statements and representations:

That he was not then suffering from any impairment of health; that he had not consulted or been treated by a physician or surgeon within the last ten years; that no medical examiner or physician had either formally or informally expressed an unfavorable opinion as to his insurability or health; that he had had no sickness in the last ten years; that he was then in good health and free from every disease and infirmity.

The answer further contained the allegation that such statements and representations were made by insured to induce defendant to issue the policy of insurance; and that the same were material to the risk to be assumed by the defendant; that defendant believed the same were true, and relying upon the same as being true, defendant issued and delivered the said policy; that a copy of said written application containing the said statements and representations of Pearl Bell were attached to and made a part of the policy; and that the two together constitute the entire contract between defendant and the insured, Pearl Bell, and the beneficiary, Elva O. Bell.

It is further averred in the answer that the said statements and representations made by Pearl Bell in his written application were and are false and untrue and known by the insured to be false and untrue at the time they were made.

It is further averred in the answer that the insured, Pearl Bell, was afflicted with serious ailments and diseases of the throat and for a period of more than eight months prior to the date of making his said application for life insurance he had been in ill health; that in September, 1931, he had submitted to a surgical operation for the removal of his tonsils, from the effects of which he had never recovered; that during a period of more than eight months prior to the making of his application for life insurance he had been under the care of several physicians and had consulted and had been treated during said period of eight months by said physicians for said ailments, diseases, and ill health; that as a result of said ailments and diseases he was not an acceptable life insurance risk and that his life was seriously and permanently impaired; that insured purposely and intentionally concealed from defendant his physical condition and his ailments, diseases, and impairments from which he then suffered and that he intentionally concealed from the defendant the facts that he had been treated by physicians; that had defendant known the said statements and representations were false and of the existence of the ailments and diseases with which he was afflicted and had known of the fact that he had consulted and been treated by physicians for said ailments and diseases, it would have disapproved and rejected his written application and would not have issued and delivered the said policy of insurance.

It is further averred in the answer that by reason of the actual condition of his health, the insured became despondent and as a direct result thereof took his own life, and that the bad condition of his health and the matters he misrepresented as aforesaid actually contributed to his death.

The answer further stated that the defendant was not aware of the fact that the statements and representations made by the insured in his written application were false and untrue, nor was it aware of the intent and purpose of insured in procuring said insurance until after the 11th day of May, 1932, and not until the 1st day of July, 1932, and that thereupon it offered to return the premium to plaintiff, amounting with interest to $23.03, and demanded the surrender and return of the insurance policy, but that plaintiff had refused to accept said tender or to return said policy.

The reply was a general denial.

Plaintiff offered in evidence the policy sued on, together with the application signed by the insured. It was admitted by counsel for defendant that due proof of death was made and payment was refused by defendant because of the matters pleaded as affirmative defenses in its answer, and further admitted that the premium for one year from the date of the issuance of the policy had been duly paid, and it was also admitted by plaintiff's counsel that the premium, amounting with interest to $23.03, had been tendered to the plaintiff, and that it was still being tendered. It was also admitted by counsel that the insured was found dead from a gunshot wound. This was all the testimony adduced by plaintiff.

The testimony offered on the part of defendant was substantially as follows:

Dr. C. C. Palmer, a practicing physician of Centralia, Mo., testified that he treated Pearl Bell, the insured, at one time in December, 1931, and at another time in January, 1932, and found him suffering from a very badly irritated throat and that in his opinion the patient had a tubercular throat; that he based his opinion on what he saw in the examination and also the history; that he swabbed the throat, which allayed the irritation, but did not cure the tuberculosis; that he never heard of one being cured when in that stage.

Roy Bruce, a close neighbor of the insured, testified that he had been over to the Bell home and had seen the insured from time to time before his death and noticed that he had a sore throat; that he was not out working as much as formerly; that he could hardly speak at times and complained that his throat hurt him; that for two or three months prior to his death his health was not as good as formerly; that he was not as fleshy as he formerly was; that on one of his visits to Pearl Bell shortly before his death, when he found him lying down, he told Bell that he wished he would get some medicine from his (witness') doctor, but Bell replied that there was no need of that, that he wouldn't do him any more good than the one he was using; that he came to the Bell home on getting information from Mrs. Bell that her husband was found dead; that he arrived just a few minutes after he got the information; that he saw the body of Pearl Bell laying on the floor in the kitchen; that it was partly under the edge of the dining room table; that there was a single-barrel shotgun by him; that the wound which killed him was in his breast; that the ordinary kitchen furniture was just about what had always been there in the kitchen.

Mrs. Roy Bruce testified that she and her husband were close friends of Mr. Bell and his wife and visited one another quite frequently; that the last time she saw Mr. Bell was Tuesday afternoon, May 10th; that he was found dead the following day, Wednesday, May 11th; that he was asleep when she was there on that Tuesday afternoon; that he was in a kind of a stupor; that he never said much about his health; that he never did want doctors; that he did not talk when she was there the afternoon before his death; that she thought maybe he was tired, because they had had company; that she did not try to talk to him; that when she came in he nodded ("spoke to us, he knew us, or knew me"), but that was all; that one of his bedroom slippers had fallen off and he motioned for Mrs. Bell to put it on, and that she and Mrs. Bell could not understand, but that Mrs. Bell finally did; that she did not recall that he gave any reason why he did not talk; that she was not in his room but a very short time, a half an hour; that she came to the house on getting notice of his death the next day and found his body was partly under the table and a shotgun was laying beside him; that his head was partly under the table and he was laying on the floor.

On cross-examination the witness said that he (Mr. Bell) had suffered some injuries from a fall a few days before; that he told her in reference to the fall that he just turned blind and fell down the steps.

Other witnesses called by defendant testified in substance that he lost flesh and that his health appeared to be impaired.

The following testimony given by plaintiff, Elva Bell, at the coroner's inquest, was read in evidence by the defendant as an admission, viz.:

"Q. How long have you been married? A. 23 years.

"Q. How long have you lived here? A. About seven years.

"Q. What has been condition of your husband's health...