Brabham v. Pioneer Life Ins. Co.

• Decision Date: 06 July 1923
• Docket Number: No. 17827.,17827.
• Citation: 253 S.W. 786
• Parties: BRABHAM v. PIONEER LIFE INS. CO. OF AMERICA.
• Court: Missouri Court of Appeals

253 S.W. 786

BRABHAM v. PIONEER LIFE INS. CO. OF AMERICA.

No. 17827.

St. Louis Court of Appeals. Missouri.

July 6, 1923.

Rehearing Denied July 18, 1923.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Ira May Brabham against the Pioneer Life Insurance Company of America, now the Continental Life Insurance Company of Kansas City. Judgment for plaintiff, and defendant appeals. Affirmed.

Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant.

Edward W. Foristel and James J. O'Donohoe, both of St. Louis, for respondent.

ALLEN, P. J.

This is an action on a policy of insurance issued by the defendant insurance company on March 4, 1919, insuring the life of William S. Brabham, plaintiff's husband, in the sum of $2,000, in favor of plaintiff, the beneficiary named therein. The insured died on November 7, 1919. Plaintiff duly made proof of loss and demand upon defendant, but defendant declined to pay the insurance.

The petition is in the usual form, praying judgment for the amount of the policy, together with 10 per cent. thereof as damages and $500 as a reasonable attorney's fee, as for defendant's vexatious refusal to pay the loss.

The answer, after admitting the issuance of the policy, the death of the insured, the payment of the only annual premium due thereon, etc., makes certain specific denials and denies generally the other allegations of the petition. Defendant then sets up an affirmative defense predicated upon the charge that the insured, in answer to questions propounded to him in his application for the policy, made a part of the contract of insurance, falsely and fraudulently stated that he had had no injury or disease during the last five years prior thereto and that he was then in good health, averring that in fact the insured had received a severe injury to his head on January 20, 1919, from the effects of which he was suffering at the time of said application and as a result of which he died; and that he was not in good health at the time of said application, by reason whereof the policy never became effective; defendant pleading, inter alia, a provision of the policy providing that the policy should not take effect unless the applicant was in good health at the date of the delivery thereof.

The reply puts in issue the new matter in the answer, and pleads that if the insured made misrepresentations in his application as alleged in the answer, defendant ought not to be permitted to deny liability on the policy for the reason that defendant, through its officers, agents, and employees, knew the condition of the health of the insured and knew what diseases and injuries, if any, he had had during the five years next prior to the date of the application, and with such knowledge solicited the insurance, executed and delivered the policy, and received the premium thereon, which it retained until after the institution of the suit.

At the trial plaintiff introduced the policy in evidence and rested. The provision thereof upon which defendant relies is as follows:

"This policy shall not take effect unless the first premium hereon has been paid and this policy delivered to the applicant within thirty (30) days from the date hereof, or unless the applicant is in good health at the date of its delivery."

Defendant then introduced in evidence the application for the insurance, signed by the insured, including the insured's answers to defendant's medical examiner. Therein the following questions and answers appear:

"Are you in good health? Yes. * * *

"What disease or injuries have you had during the last five years? None."

Defendant then introduced in evidence the proofs of death furnished to it by plaintiff; including a verified statement by the claimant, this plaintiff, and a like statement by the attending physician. In plaintiff's statement the cause of death is stated as "hemorrhage of the brain"; and the statement of Dr. Cheatham, the physician who attended the insured during his last sickness and until the time of his death, contains the following:

"On January 20 the patient was injured and caused concussion of brain with a probable hemorrhage. The last hemorrhage was in my opinion a recurrence of the first traumatic hemorrhage of brain."

Defendant then introduced in evidence the petition in a suit filed by this plaintiff on November 14, 1919, against the United Railways Company of St. Louis, wherein plaintiff sought to recover for damages for the death of the insured, on November 7, 1919, alleged to have been caused by an assault committed upon him by one of that company's conductors on January 20, 1919, resulting in cerebral hemorrhage.

And defendant tendered and paid into court the amount of the first annual premium received by it, with interest.

Testimony introduced by plaintiff in rebuttal tends to show that the insured, a physician practicing his profession in the city of St. Louis, was assaulted on January 20, 1919, receiving a blow upon his head which caused a hemorrhage of the brain and rendered him unconscious fop some days; that he was suffering from the effects of this blow, by way of partial paralysis and otherwise, at the time of the application for the insurance and the issuance of the policy; and that he finally, on November 7, 1919, died as a result of the injuries thus inflicted upon him. In support of her plea of waiver, plaintiff adduced evidence tending to show that defendant's agent, Passer, was fully Informed concerning the assault upon the insured on January 20, 1919, and of the insured's condition of health resulting therefrom, prior to taking the insured's application for the insurance, but that with such knowledge he solicited the insurance, accepted the application therefor, procured the issuance of the policy and delivered it to the insured, and collected the premium thereon, a part of which was paid by the insured and a part subsequently paid by this plaintiff.

Touching the matter of the authority of the agent Passer, plaintiff made proof that Passer was a soliciting agent for defendant, having authority to solicit insurance, take applications and fill them out, to collect the premiums thereon and receipt therefor, and to deliver policies for which he had taken applications.

It appears that the agent took the insured's initial application for the insurance at the latter's office on February 25, 1919 that on the following day the insured was examined at his office by defendant's medical examiner, at which time he signed that portion of the application containing his answers to the questions propounded to him by the examiner; and that on March 4, 1919, Passer delivered the policy, accepting the insured's check for the first annual premium, and receipting therefor.

Dr. Haskell, a physician, brother of plaintiff, testified that he and the insured occupied offices in the same building at Compton and Laclede avenues, in said city, using a common waiting room; that defendant's agent, Passer, came to the office several times, "trying to get all the physicians in the building to be insured," talked to the witness about insurance, and persuaded the insured to take out insurance. The witness stated that he was present in the waiting room when Passer talked with the insured and when the application was signed; and his testimony, in substance, is that Passer was fully informed as to the injuries received by the insured on January 20 of that year, and of the insured's condition of health resulting therefrom. The witness said:

"Mr. Passer asked me if I thought that Dr. Brabham's injuries would be permanent, and I told him it was hard to say that; that from all indications they were very apt to be permanent."

And he stated that the agent said:

"It is too bad. * * * Well, he needs some protection for his wife and family. * * * I understand he has two children."

And the witness said that Passer told him that if he could write Dr. Brabham he was satisfied that he could get other physicians to take insurance. The witness further testified as to the insured's condition on that day, saying that he had a "wobbly," unsteady gait, was easily fatigued, and could not walk "without leaning on something or having some support." When asked how the insured's physical condition manifested itself, he said:

"It manifested itself in a rather unsteady or staggering gait, and he had a very incoherent way of speaking and a kind of staggering gait; he couldn't stand unless he was leaning against something to steady himself; and then he had a depressed look and expression."

The witness further testified that some time in April of that year he again saw Passer, when the latter "was trying to get the money for the policy," and that Passer then stated that he understood that the insured was in a very serious condition, saying that "it would be a shame for him to die and leave the widow with two children."

On cross-examination this witness testified as to the insured's condition following his injury on January 20, 1919, from which it appears that the insured was unconscious for some days after his injury, was confined to his bed for several weeks and could go to his office but little for a period of two or three months; that his left leg and arm were paralyzed; and that this condition improved but slightly.

One Antonio Haskell, another brother of plaintiff,...