Brizendine v. Central Life Ins. Co.

• Decision Date: 31 July 1939
• Citation: 131 S.W.2d 906,234 Mo.App. 460
• Parties: CORA B. BRIZENDINE, RESPONDENT, v. CENTRAL LIFE INSURANCE COMPANY, APPELLANT
• Court: Kansas Court of Appeals

131 S.W.2d 906

234 Mo.App. 460

CORA B. BRIZENDINE, RESPONDENT, v. CENTRAL LIFE INSURANCE COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

July 31, 1939

Appeal from Jackson Circuit Court.--Hon. Albert A. Ridge, Judge.

Judgment affirmed.

McAllister Humphrey, Pew & Broaddus and C. F. Douglass for appellant.

(1) The court erred in refusing to sustain appellant's demurrer offered at the close of all the evidence in the case, for the reason there was no evidence tending to show appellant acted in bad faith, that is, with fraud or deceit, in procuring the release and surrender of the policy from respondent. Zinke v. Knights of the Maccabees, 275 Mo. 660, 205 S.W. 1; McCormick v. City of St. Louis, 166 Mo. 315. (2) The court erred in giving Instruction Number 1, for the reason there was no evidence upon which to base its required finding that at the time of the execution of the release appellant had no reasonable ground upon which to pay plaintiff the sum of $ 5000, and that there was no bona fide dispute concerning appellant's liability under the terms of the policy. Cory v. Interstate Securities Co. (Mo App.), 99 S.W.2d 861, l. c. 863; Gundelach v. Campagnie Generale Transatlantique (Mo.), 41 S.W.2d 1, l. c. 2.

Harvey Roney and Carl Borello for respondent.

(1) The court did not err in overruling defendant's demurrer, offered at the close of all the evidence, for the following reasons: (a) There was no consideration for the release. (b) Defendant had no reasonable ground upon which to refuse to pay to plaintiff the full $ 5000. (c) The amount paid to plaintiff by defendant was in payment of defendant's conceded and admitted liability on the face amount of the policy. (d) There was no evidence to sustain the defense of bona fide dispute or controversy existing at the time of the execution of the release. Lynn v. Business Men's Assurance Co. of Am. (Mo. App.), 111 S.W.2d 231; State ex rel. v. Shain et al., 339 Mo. 903, 98 S.W.2d 597; Sappington v. Central Mut. Ins. Ass'n. (Mo. App.), 77 S.W.2d 140; Yancey v. Central Mut. Ins. Ass'n. (Mo. App.), 77 S.W.2d 149; Berry v. Detroit Casualty Co. (Mo. App.), 300 S.W. 1026; Harms v. Fidelity & Casualty Co. (Mo. App.), 157 S.W. 1047; Goodson v. Ins. Co., 91 Mo.App. 339; Fowler v. Mo. Mutual Ass'n. (Mo. App.), 86 S.W.2d 946; Mack v. Acacia Mut. Life Ass'n. (Mo. App.), 65 S.W.2d 1045; Schrieber v. Central Mut. Ins. Ass'n. (Mo. App.), 108 S.W.2d 1052; Biddlecum v. General Acc. Ass'n. Co. (Mo. App.), 152 S.W. 103; Head v. N. Y. Life Ins. Co., 241 Mo. 403, 147 S.W. 827; Dodt v. Prudential Ins. Co., 186 Mo.App. 168, 171 S.W. 655. (2) Court did not err in giving plaintiff's Instruction 1.

KEMP, J. Shain, P. J., concurs; Bland, J., not sitting.

OPINION

KEMP, J.

This is an action upon a policy of life insurance bearing date of April 6, 1936, issued by defendant Central Life Insurance Company of Illinois, upon the life of Fred W. Brizendine, who was then, and at the time of his death, a resident of Independence Missouri.

Upon trial of the case the jury returned a verdict in favor of plaintiff in the amount of $ 2612.50, upon which judgment was duly rendered in like sum, from which judgment defendant has prosecuted this appeal.

Cora B. Brizendine, plaintiff herein, was the wife of the assured and was named as beneficiary in said policy. The face amount of said policy was $ 2500. Attached to said policy and forming a part thereof was what is known as a "double indemnity" agreement, which provided that the company would pay $ 5000 in lieu of the face amount of said policy in the event of accidental death as the term is therein defined.

The record discloses two applications for this insurance, dated, respectively, March 22 and March 26, 1936. In each of said applications the following questions and answers appear, to-wit:

"Q. Are you a total abstainer? A. Yes.

"Q. If not, to what extent do you use alcoholic beverages? A. None.

"Q. Have you been intoxicated within the last five years? A. No."

Between 2:00 and 2:30 in the morning of March 26, 1937, the assured was injured critically as a result of an automobile which he was driving colliding with the structural portion of an underpass. He was moved to the Independence Sanitarium, where he died at about noon of the same day, without having regained consciousness.

On April 22, 1937, Hugh Markey, defendant's agent at Independence, and Ralph M. Waterbury of Chicago, who was director of agencies for defendant company, went to plaintiff's home with a view to making a settlement with plaintiff. As a result of the discussion which there ensued, plaintiff executed a "Receipt and Release," which recited that plaintiff "for and in consideration of the sum of Two Thousand Five Hundred ($ 2500) Dollars, to me cash in hand paid by the Central Life Insurance Company of Illinois, the receipt of which is hereby acknowledged, do hereby . . . release and forever discharge said Central Life Insurance Company of Illinois . . . from any and all claims, demands and causes of action at law or in equity, due to, or in any manner arising out of Policy No. 121708, issued by the said Central Life Insurance Company of Illinois, upon the life of Fred W. Brizendine, deceased."

The release was dated April 22, 1937, and was duly acknowledged before a Notary on the same day. Defendant, in accordance with the terms of said release, paid plaintiff the sum of $ 2500, by its check dated April 23, 1937.

This suit is for $ 2500, being the balance alleged by plaintiff to be due from defendant under the terms of said "double indemnity" contract of insurance.

Defendant, in its answer, admits the death of assured through accident, but alleges that there was a bona fide controversy between plaintiff and defendant as to whether or not there was any liability under said policy, and that defendant paid plaintiff $ 2500 in full settlement of said disputed claim and that plaintiff executed her "Receipt and Release" based upon said consideration and is bound thereby.

The answer alleged the further defense that "insured's death resulted from the commission of a felony." There was, however, no evidence offered in support of this charge, and no point touching said charge is made in this appeal.

Plaintiff filed reply which put in issue these allegations.

Appellant's assignments of error are as follows:

"I. The court erred in failing to give defendant's instruction in the nature of a demurrer offered at the close of all the evidence in the case.

"II. The court erred in giving Instruction I."

The contention made by appellant in support of each of these assignments is that there was no evidence from which a jury could find "that there was no bona fide dispute concerning appellant's liability under the terms of the policy". This is, therefore, the sole point involved in this appeal. Its determination requires a consideration of all the evidence pertinent thereto.

Within a week following the death of the assured, the plaintiff furnished to defendant duly executed proofs of the death of the assured. Among these were sworn statements by the two physicians, Dr. Zeller and Dr. Nickson, who attended assured following his fatal injuries. These identical forms filled out by these two physicians contained the following questions:

"Did deceased use alcoholic or narcotics?

"If so, did they contribute to the fatal illness?"

To the first of these questions, Dr. Zeller, who had treated assured for influenza in 1935, answered, "Not to my knowledge," and to the second question, "No." Dr. Nickson, in answer to the first question, said "Yes--alcoholic beverages," and to the second question, "Yes, alcoholism."

At the trial Dr. Nickson testified that he was called to the Independence Sanitarium to attend assured whom he had not previously known; that from the time he first saw the assured until his death a few hours later, the assured did not regain consciousness. At the time he saw him there was just a faint odor of alcohol on assured's breath; it was mixed with the odor of blood, which has a peculiar odor itself after certain length of time; that it would be impossible to say to what extent he was under the influence of alcohol."

"Q. Or whether or not he was under the influence of alcohol at all? A. Yes. All I could tell he had a faint odor of alcohol on his breath."

Questioned about the answers he made in the proof of death, Dr. Nickson said they were "based solely upon the faint odor of alcohol on his breath." From his observation of the assured, he stated that he could not tell whether he had been intoxicated or not, or to what degree, if any, he had been under the influence of alcohol.

Wallace Jones, a witness produced by defendant, testified that he saw the assured at the County Home, where both were employed, at a little past midnight of the day assured was injured. As far as he could see, the assured was all right and did not appear to have been drinking. He testified that the assured hadn't been drinking for two or three years, but that prior to that time he had seen him with "a little too much." When he saw assured with "a little too much" does not appear. When asked if he had seen assured in this condition within the past six years, the witness replied: "I wouldn't say how long it had been since I seen him take a drink."

Defendant called William Junkins, who was likewise employed at the Jackson County Home. He testified that he saw the assured shortly after midnight; that the assured was to take Junkins' place at 11:00 o'clock, but did not do so. He testified that the assured seemed all right and that he saw no indication that he had been drinking.

Mrs Mike Casey, testifying on behalf of defendant, stated that assured came to her home at about 2:00...