Bernblum v. Travelers Ins. Co. of Hartford, Conn.

• Citation: 105 S.W.2d 941,340 Mo. 1217
• Decision Date: 05 June 1937
• Docket Number: 34440
• Parties: Harry Bernblum v. Travelers Insurance Company of Hartford, Connecticut, Appellant
• Court: United States State Supreme Court of Missouri

105 S.W.2d 941

340 Mo. 1217

Harry Bernblum v. Travelers Insurance Company of Hartford, Connecticut, Appellant

No. 34440

Supreme Court of Missouri

June 5, 1937

Appeal from Livingston Circuit Court; Hon. Ira D. Beals Judge.

Reversed and remanded.

Davis & Davis and Mosman, Rogers, Bell & Buzard for appellant.

(1) The court erred in the exclusion of evidence. (a) Kornfeld was a competent witness to prove the agreement had with Glassco at the time the policy was handed to him. Darby v Northwestern Mut. Life Ins. Co., 293 Mo. 1, 239 S.W. 68; Prindle v. Fid. & Cas. Co., 233 S.W. 252; Wagner v. Binder, 187 S.W. 1128; Clark v. Thias, 173 Mo. 628, 173 S.W. 616; Allen v. Jessup, 192 S.W 720. (b) The defense of no delivery or acceptance of the policy was available to the defendant under the allegations of the answer, and it was competent to prove the fact by the testimony of the witness Kornfeld, and the court erred in excluding the testimony of the witness and the offer of proof to show that there was no delivery or acceptance of the policy. State ex rel. v. Robertson, 191 S.W. 989; Mo. State Life Ins. Co. v. Salisbury, 279 Mo. 40, 213 S.W. 786; Dayton v. Travelers Ins. Co., 303 Mo. 1, 259 S.W. 448; Lafferty v. K. C. Cas. Co., 229 S.W. 750; 5 Wigmore on Evidence (2 Ed.), sec. 2408; Chicago Fire & Marine Ins. Co. v. Hyde Park Congregational Church, 35 F.2d 73; Barrett v. Davis, 104 Mo. 555, 16 S.W. 379; Moore v. Farmers Mut. Ins. Assn., 107 Ga. 199, 33 S.E. 65; American Ins. Co. v. Lowry, 62 F.2d 209; Bostick v. New York Life Ins. Co., 284 F. 256; Harris v. Travelers Ins. Co., 80 F.2d 127; Eaton v. New York Life Ins. Co., 315 Pa. 68, 172 A. 121, 95 A. L. R. 462. (c) Defendant's Exhibit 2, being the policy inspection receipt, was properly receivable in evidence to prove that there had been no delivery or acceptance of the policy. Coffin v. New York Life Ins. Co., 127 F. 555; Rey v. Equitable Life Assur. Soc., 44 N.Y.S. 745; Harris v. Travelers Ins. Co., 80 F.2d 127. (2) The court erred in admitting the testimony of Rose Wagner Harper to the effect that Glassco had talked to her about the policy on or about the 24th or 25th day of December, 1930, and suggested that she take out a similar policy and stated that he had already received his policy and they had extended him credit until the latter part of January. The alleged declarations were self-serving and hearsay. Brown v. Pac. Mut. Life Ins. Co., 109 Mo.App. 137, 82 S.W. 1122; Perry's Admr. v. Roberts, 17 Mo. 36; Weller v. Collier, 199 S.W. 974; Townsend v. Schaden, 275 Mo. 227, 204 S.W. 1076; Tuite v. Supreme Forest, Woodmen's Circle, 193 Mo.App. 619, 187 S.W. 137; Dodge v. Freedman's Savs. & Trust Co., 93 U.S. 379; Dayton v. Travelers Ins. Co., 303 Mo. 1, 259 S.W. 448; Jackson v. Curtiss-Wright Airplane Co., 68 S.W.2d 715; Bergman v. Supreme Tent, Knights of Maccabees, 203 Mo.App. 685, 220 S.W. 1029. (a) The court erred in the admission of testimony concerning the bills for hospitalization, medical attention and nurse hire incurred by reason of the injury to Glassco for the reason that the provision for indemnity for hospitalization, medical attention and nursing, if recoverable at all, could only be recovered by the administrator of Glassco and did not belong to the beneficiary. Martin v. Travelers Ins. Co., 247 S.W. 1024, Id., 310 Mo. 411, 276 S.W. 380; Rosenberry v. Fid. & Cas. Co., 14 Ind.App. 625, 43 N.E. 317; Fuller on Insurance, p. 291; Maryland Cas. Co. v. McGill, 69 S.W.2d 158. (3) The court erred in giving to the jury plaintiff's Instruction 1 which authorized a recovery for the beneficiary for certain indemnities which, if payable at all under the policy, were payable only to Glassco, or in the event of his death, to his personal representative. Martin v. Travelers Ins. Co., 247 S.W. 1024, Id., 310 Mo. 411, 276 S.W. 380; Rosenberry v. Fid. & Cas. Co., 14 Ind.App. 625, 43 N.E. 317; Fuller on Insurance, p. 291; Maryland Cas. Co. v. McGill, 69 S.W.2d 158.

McVey, Randolph, Smithson & Garrity, Paul R. Byrum and Chapman & Chapman for respondent.

(1) Appellant's claim that the court excluded the testimony of witness Kornfeld as to his conversations with Glassco is incorrect and without foundation. Kornfeld was held a competent witness and his evidence was admitted. Only his evidence relating to the inspection receipt was excluded. (2) The ruling of the trial court, excluding the inspection receipt, was correct, because (a) Under the terms of Section 5729, Revised Statutes 1929, the inspection receipt was void. Major v. Aetna Life Ins. Co., 260 S.W. 759; Jefferson Standard Life Ins. Co. v. Baker, 260 S.W. 223; 1 Couch Cyc. of Ins. Law, sec. 138; Manhattan Life Ins. Co. v. Verneuille, 156 Ala. 592; Minsker v. John Hancock Mut. Life Ins. Co., 254 N.Y. 333; Coughlin v. Reliance Life Ins. Co., 161 Minn. 446, 201 N.W. 920; Quast v. Fidelity Life, 123 N.E. 494, 226 N.Y. 270; State v. Schwarzschild, 83 Me. 261, 22 A. 164. (b) Appellant's argument on conditional delivery ignores Section 5729, and so, is not in point. (c) Parol evidence concerning conditional delivery of the policy was admitted by the trial court. (3) The court properly submitted to the jury the items of expense covering hospital, nursing and medical costs. Smith v. Prudential Ins. Co., 12 P.2d 793. (4) As to appellant's claim of error in the giving of Instruction P-2. (a) Instruction P-2 covers the evidence of both parties as to declarations of the deceased, and is not subject to the criticism that it singles out only the declarations of plaintiff's witness, Rose Wagner Harper. (b) Acceptance is a mental act, and evidence as to the declarations of the deceased is competent in proof of the mental state, i. e., the acceptance. Pauley v. Assurance Co., 217 Mo.App. 307; State v. Ilgenfritz, 263 Mo. 634; State v. Blackburn, 273 Mo. 482; Mut. Life Ins. Co. v. Hillmon, 145 U.S. 295; In re the San Rafael, 141 F. 279; United States v. Gentry, 119 F. 73; Gordon v. Munn, 87 Kan. 624, 88 Kan. 72; Conry v. McLean, 232 P. 1034; 22 C. J., pp. 281-3. Retention of the policy without rejection beyond a reasonable time is proof of acceptance. Lyke v. Assurance Co., 187 S.W. 267; 32 C. J., p. 1128; 1 Cooley's Briefs on Ins., p. 679. (c) No requirement existed compelling communication to the insurer of the fact of acceptance. Edwards v. Assn., 205 Mo.App. 111.

OPINION

Hyde, C.

This is a suit on an accident insurance policy. Plaintiff is the assignee of the beneficiary thereof and sued for the benefits therein payable for the death of the insured and hospital and medical expenses as well. Plaintiff had a verdict for $ 7584, and defendant has appealed from the judgment entered thereon.

The policy sued on stated that defendant "does hereby insure James S. Glassco . . . against loss resulting from bodily injuries . . . through accidental means;" that "this policy is issued in consideration of the premium of Ten and No/00 Dollars, for the term of three months to commence on the 29th day of November, 1930;" that "this policy includes the indorsements and attached papers, if any, and contains the entire contract of insurance;" that "no agent has authority to change this policy or to waive any of its provisions;" and that "no change in this policy shall be valid unless approved by an executive officer of the company and such approval indorsed hereon." When Glassco received this policy from the defendant's agent he signed a receipt (which the trial court refused to receive in evidence) which is as follows:

"Policy Inspection Receipt

"Accident Department. November 29, 1930.

"Received from J. E. Kornfeld, agent of the Travelers Insurance Company, Hartford, Connecticut, Policy No. R-I-38518 for inspection only. This policy shall not take effect or be in any way binding upon the Company unless nor until the premium therefor is actually paid and this receipt is surrendered while I am in good health and free from injury, nor in any event unless paid within sixty days of the date of the policy.

"James S. Glassco."

It was admitted that Glassco had signed this receipt and had never paid the premium. (His father tendered it after his death.)

Defendant's agent took Glassco's application with the understanding that he would not have to pay for the policy, to be written, but that he could submit it to his father to approve or reject. He testified:

"When I delivered the policy to Mr. Glassco he said that since he was in the employ of his father he would have to pay the premium. . . . There was an arrangement which I could permit him to have 60 days in which to make up his mind as to whether he wanted it or not and that arrangement, was made. . . . I told Mr. Glassco that under the circumstances inasmuch as he was going to have to present the policy to his father for inspection, he being the one that was going to have to pay the premium, I would have to expect him to sign this inspection receipt. (Ordered stricken out by trial court.) . . . (About 30 days later the agent saw Glassco again.) I had settled up with the Travelers Insurance Company and I informed him that they were expecting me to make some disposition at once of all items outstanding. I was attempting to determine just what his intentions were and asked him as a favor to myself to return the policy and allow me to rewrite the policy with the Federal Life, which Company I signed a contract with on the date I settled up with the Travelers Insurance Company. . . . He said . . . 'You'll be downtown in the next day or two, stop in the office and I'll just hand it over to you.'" (This conversation was about the 30th of December, 1930, and Glassco died from injuries received on January 1, 1931.)

Offers of proof were made to show in more detail the conversations between the agent and Glassco,...