Bennett v. Standard Acc. Ins. Co.

• Decision Date: 06 June 1924
• Docket Number: (No. 18469.)
• Citation: 264 S.W. 27
• Parties: BENNETT v. STANDARD ACC. INS. CO.
• Court: Missouri Court of Appeals

264 S.W. 27

BENNETT v. STANDARD ACC. INS. CO.

(No. 18469.)

St. Louis Court of Appeals. Missouri.

June 6, 1924.

Rehearing Denied July 11, 1924.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Frederick D. Bennett, by his guardian, Harris N. Bennett, against the Standard Accident Insurance Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

M. U. Hayden and Anderson, Gilbert & Wolfort, all of St. Louis, for appellant.

Lee W. Hagerman and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, for respondent.

DAVIS, C.

This is a suit by plaintiff, non compos mends, by his guardian, to recover on an accident insurance policy for injuries caused by the accidental inhalation of illuminating gas. The jury returned a verdict for $1,325, and $502.66 interest, totaling $1,827.66. From the judgment entered thereon, defendant appeals.

This is the second appeal. The former appeal, reversing and remanding the cause, is reported as Bennett v. Standard Ace. Ins. Co., 209 Mo. App. 81, 237 S. W. 144. The facts there stated are so like and similar to the facts found in this record that we refer to them. Consequently, we epitomize only such record evidence as pertains to the questions here raised.

The evidence tends to show that on March 27, 1915, defendant, through its agent, Charles L. Crane, issued to plaintiff its written policy of insurance No. 82R-3589, promising to pay him, in consideration of the premium, which was paid, certain sums in specified cases for loss resulting from bodily injuries in event of accident, including the principal sum ($7,500) for death or loss of life. This policy ran one year. Later, at the instance of plaintiff, and the premium paid, defendant renewed the policy for a period of one year, ending March 27, 1917, subject to the truthfulness of the warranties in the original policy, and the agreements, conditions, and provisions therein stated. The policy contained the following provision: "I do not use intoxicants or narcotics to excess, and my habits are correct and temperate." As defendant failed to produce evidence tending to show that plaintiff used intoxicants or narcotics to excess, we dismiss that portion of the warranty from consideration. Defendant contends that both plaintiff's and defendant's evidence demonstrates that the warranty, "And my habits are correct and temperate," was false and not true. Plaintiff's evidence relating to the falsity of the warranty tends to show that a witness for plaintiff saw plaintiff walking along the street the Sunday before the accident with a woman, whom he did not recognize, and that at one time plaintiff lived at 5112 Delmar avenue. In rebuttal of defendant's testimony, another witness for plaintiff testified:

"I met Mrs. Foster with Mr. Bennett several times at various places in cafes and on the street, and at 5112 Delmar avenue. He [plaintiff] lived there, and I saw her in his apartment on several occasions."

Harris Bennett, witness for plaintiff, testified:

"The conversation with Mrs. Foster took place at the apartment at 5112 Delmar. At that time we saw Mrs. Foster enter the apartment and followed her in. There were present when we went in my brother and Mrs. Foster."

A witness stated that the Sunday before the accident she and others with plaintiff and Mrs. Foster played cards together. Plaintiff and Mrs. Foster took her home, and the last she saw of them they were on their way to the car. This evidence relative to playing cards was corroborated by a second witness.

Plaintiff's evidence further tends to show that for two or three years, prior to the accident he lived separate and apart from his wife and family.

Plaintiff's evidence further tended to show in rebuttal, that about December, 1916, there was found in plaintiff's desk, after the accident, in an envelope, a letter and note as follows:

                      "Missouri Athletic Association
                                    "Saint Louis, 8/20/16
                  "Dear Harry: I have borrowed $2,500 from
                the estate for a certain investment. As security
                for the return of same I am inclosing
                herewith my personal note at 6% interest payable
                Jan'y 1st next. And as add'l security (in
                place of the note) I am inclosing receipt for a
                life ins. policy payable to Mother. The amount
                of which is $3,000 less loan of $333.00 or $2,667.00
                net
                  "I will take care of the note when due but
                feel that an explanation on record is in order
                   "Yours                           Fred."
                  "$2500.00     St. Louis, Mo., 8/20/1916
                  "Six months after date I promise to pay to
                the order of Mrs. H. N. Bennett twenty-five
                hundred dollars, payable at the Third National
                Bank of St. Louis, with interest from maturity
                at the rate of eight per cent. per annum. Demand
                for payment, protest and notice of dishonor
                are hereby waived by all parties.
                               "[Signed] Fred D. Bennett."
                

This was all the evidence for plaintiff in the record that may be said to relate to the falseness of the warranty.

Defendant's evidence tends to show: Mrs. Foster, a witness for defendant, testified in substance: That she met plaintiff in the summer of 1908, their acquaintance continuing until September, 1916; that plaintiff lived at 5112 Delmar avenue from February 15th to June 15th alone, and that his family did not live with him there, nor did he live with his family from August, 1914, to September, 1916. Witness boarded at 5111 von Versen avenue with a Mrs. Bull, where plaintiff took his evening meal. Plaintiff made provision for her by obtaining life insurance in her favor, afterwards changing the policies, and naming the St. Louis Union Trust Company, in a declaration of trust, trustee for her. They, plaintiff and witness with others, played cards together almost every night for three years previous to September, 1916.

A witness for defendant testified.

"I saw Mrs. Foster on March 21st (1914) in a bedroom at the Chisgah Hotel in Memphis with Fred D. Bennett. * * * This was about 7 a. m."

Plaintiff leased an apartment at 5112 Delmar avenue and lived there until August, 1915. A witness testified in substance: That plaintiff lived there for several months, and that Mrs. Foster was with him and stayed there as long as he did; that she occupied the apartment during the day.

Mrs. Bull testified, in substance: That from April or May, 1916, until the accident, plaintiff took his evening meal at her home. Mrs. Foster boarded there, and plaintiff and Mrs. Foster frequently went out together. Plaintiff never at any time mentioned his wife's name.

A former clerk of the Delway Hotel, employed there from February, 1915, to February, 1917, testified that plaintiff occupied a room at the Delway, often coming in Saturday night and staying until Monday, registering with a woman as man and wife. The last time was the second Saturday night before the accident. After the accident he learned the woman was Mrs. Foster.

Plaintiff obtained four policies on his life for $5,000 each on May 7, 1915. They were payable to Eleanor L. Foster, but later the beneficiary was changed to the St. Louis Union Trust Company as trustee for Mrs. Foster.

Defendant's evidence further tended to show that plaintiff was administrator of his father's estate, and that a claim was allowed for $2,500 and interest against plaintiff's estate in favor of the administrator de bolds non of his father's estate, which claim was paid by plaintiff's guardian.

The evidence of witness Charles L. Crane tended to show that he was in the business of a general insurance agent in St. Louis and had been for 45 years; that he knew plaintiff, who was formerly connected with his office, starting as office boy. Prior to 1914 plaintiff was his office manager. Plaintiff's income varied from $5,000 to $8,000 a year. He ceased to be his office manager about 1914, but still retained connection with Crane's business until the accident in 1916. From 1914 to 1916 plaintiff was engaged exclusively in soliciting insurance. He did not draw commissions, but drew a stated percentage of the profits of Crane's business. On cross-examination witness testified, in substance, that he was the agent of the defendant in the city of St. Louis. The signature on the policy was his, but that personally he had not signed a policy for 15 years. A policy could not go in force without that signature. He had a big insurance business, and plaintiff at one time drew 20 per cent. of his profits. No one else worked for him on the same basis. He heard about plaintiff's relations with Mrs. Foster long before 1915, including the episode with Mrs. Foster in the Memphis hotel. He had no doubt that it occurred before the policy was issued. He talked to plaintiff about it, and plaintiff promised to quit, but did not. The premium paid by plaintiff was received by the defendant company, which got the money and kept it. He (Crane) was their agent, their representative in St. Louis. Defendant was a foreign corporation. He further testified, respecting the relations of plaintiff and Mrs. Foster, that he received gossip and information constantly, believed it, and eventually displaced Bennett as his office manager when he became satisfied that the stories were true. He first heard of it in 1914 while Bennett was drawing 20 per cent. as a share of his profits. The insurance policy in controversy was issued to plaintiff, but plaintiff received no commission out of the premium paid by him on the policy; that the signature on the policy was his (Crane's) authorized signature; that at the time the war rider excluding the company from liability for accident received in the war zone was issued he had all the information that he has now at the time of the trial about Bennett's relations with Mrs. Foster; that the policy was issued in the regular course of business by the average clerk, but that he was not supposed to know that it was issued; that no policy could be put in force for the ...