Burgess v. Pan-American Life Ins. Co.

• Decision Date: 25 February 1919
• Docket Number: No. 2286.,2286.
• Citation: 211 S.W. 114
• Parties: BURGESS et al. v. PAN-AMERICAN LIFE INS. CO.
• Court: Missouri Court of Appeals

211 S.W. 114

BURGESS et al. v. PAN-AMERICAN LIFE INS. CO.

No. 2286.

Springfield Court of Appeals. Missouri.

February 25, 1919.

On Motion for Rehearing, April 7, 1919.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Henry Burgess, Jr., and another, against the Pan-American Life Insurance Company. Judgment for plaintiffs, and defendant appeals. Cause certified to Supreme Court.

Ward & Reeves, of Caruthersville, and Gallivan & Finch, of New Madrid, for appellant.

N. C. Hawkins, of Caruthersville, for respondents.

FARRINGTON, J.

The plaintiffs recovered a judgment against the defendant for the full sum of a policy of insurance which had been issued by the Meridian Life Insurance Company on the life of Henry L. Burgess, the father of respondents herein. In addition to this, the verdict of the jury gave 6 per cent. interest on the amount due under the policy, and $250 for attorney fees. The court entered judgment for the plaintiffs. It is from this judgment that the defendant brings the appeal to this court.

It is admitted that the appellant here assumed the contract made by the Meridian Life Insurance Company, and, if a policy of insurance was in force as a liability against the Meridian Life Insurance Company, this appellant is also liable. It was an old-line life insurance policy, and bore date February 5, 1916. Henry L. Burgess, the insured, died April 26, 1916.

The defendant set up three defenses: First, that the deceased made false representations in his application as to his health. Second, that he fraudulently misrepresented his age. Third, as follows:

"That the insured at the time the policy was delivered to him was not in good health, from which ill health he died about two months after the policy was issued, and that the plaintiffs have been tendered back the premium paid with six per cent. (6%) interest thereon, which amount, to wit, $157.85, was paid into court for plaintiffs."

The plaintiffs by reply denied the new matter, and offered in evidence the policy and a letter to the beneficiaries, dated August 16, 1916, denying liability.

The writer is of the opinion that the trial court erred in rendering the judgment herein appealed from: First, the demurrer to the evidence offered by the defendant should have been sustained, because under all the substantial testimony offered in the case it is uncontrovertibly shown that the insured was not in good health, and that he was suffering With an illness which contributed to his death on the day the policy was delivered to him. And, second, even though there was evidence sufficient to take the case to the jury, there was error in the giving and refusal of instructions which will be hereinafter noted.

I. Attention will first be directed toward the refusal of the court to sustain a demurrer to the evidence. This will require a review of the testimony. The application and the policy sued on contain a provision that the policy would not go into effect or be binding on the defendant unless at the time it was delivered to the insured he was well and in good health. The policy was delivered on February 21, 1916, and the receipt introduced, signed by Henry L. Burgess, the insured, contained the following: "I hereby warrant that I am now in good health." This clause in the policy was a valid provision, and was a warranty made by the insured that would defeat the policy if he in fact on the date the policy was delivered was sick, and was in such a state of ill health as to contribute to his death. The whole question of fact, if any, here ranges about the date upon which the insured contracted the sickness which contributed to his death, as all of the testimony shows that at some time in February, ranging from the 11th to the 24th, the deceased took sick, from which sickness he never recovered, although the form of the particular disease may have changed. That is to say, all of the witnesses testified that some time in February, 1916, Henry L. Burgess became sick with a cold and la grippe, from which followed pneumonia, and death finally on April 26, 1916; that is, that Henry L. Burgess was during that period in February in ill health and not well, and that from that date—whenever it was—until his death he never was in good health and well. We therefore have out of this case a question of fact for a jury to find whether the sickness with which he was taken in February contributed to his death, because it is admitted by all parties that that sickness which began some time in February was his last sickness, and that his condition was never that of a well man nor was he in good health from that time until he died.

The defendant introduced the following testimony as to the state of his health beginning February 11, 1916:

Mrs. Emma Utterback testified that her maiden name was Emma Swilley; that she did not personally know Henry L. Burgess, but that she taught school in his place at Haywood, and began teaching on Monday, the 21st day of February, 1916. She testified that the other teacher in the school was Miss Purcell, and that she (Mrs. Utterback) was hired by the school board beginning, the 21st of February, 1916, for a period of ten weeks. Burgess was principal of the school, and she took his place at that time. She missed a few days after that inns on account of an accident to herself, but her employment continued until the end of the term in May.

Mrs. H. Forsythe, whose maiden name was Miss Purcell, testified: That she taught school as an assistant to henry L. Burgess in 1915 and 1913. That she knew Miss Swilley, now Mrs. Utterback, and that she, then Miss Purcell, was the primary teacher under the deceased. That the deceased was first taken sick in January, 1916, and that sickness was something like two weeks. After that time the deceased resumed teaching, and got sick again and had to quit. That it was in February, and that he was taken sick on Sunday after he had left school on Friday, the 11th. That she taught school a week by herself, and then Miss Swilley taught a week, and that Miss Swilley taught in the deceased's place until his death. She also testified that his health was very poor, and that he was coughing and breathing with difficulty; that the deceased was taken sick the second time, which was the beginning of his last illness, on February 11th; and that she went to his house to see him; and that he was at that time living at the home of his daughter, one of the plaintiffs here, Mrs. Hobbs.

William Carter, one of the school directors, testified that the insured was sick in January and was out of school, came back and taught after that time until he became sick, and that Miss Swilley finished up the term. He did not know the date that Miss Swilley began teaching, but stated that the records of the school would show when Miss Swilley was employed; and further testified that one of the plaintiffs in this suit, Henry Burgess, Jr., was the clerk of the school board and had the records in his possession which would show the exact date.

Judge W. C. Riles, another school director, testified that the deceased got sick some time in February when teaching school; that he did not remember the date; that after he got sick Miss Swilley (now Mrs. Utterback) went down to teach; that he had hired the deceased to teach; that he saw him several times in February; and that he had la grippe, but did not know when in February he got sick. The evidence of the two school directors makes it certain that the insured had become incapacitated to teach school by reason of ill health when Miss Swilley was employed to teach in his place.

The defendant also introduced the proofs of death furnished by the two respondents here, which proofs contain the following statements:

"Q. Where and when did death occur? A. Place, Pemiscot county; date, April 26, 1916. Q. When wag health of deceased first affected? A. About February 20, 1916. Q. What was the duration of his last illness? A. About sixty days. Q. What was the immediate cause of death? A. La grippe. Q. What were the causes and circumstances of sickness and death? Give all details within your knowledge. A. Contracted la grippe."

The proof of death also stated that Drs. O'Kelly and Mayfield, of Portageville, Mo., were his physicians.

On the question of the condition of the deceased's health on the date the policy was delivered, the plaintiffs introduced Dr. Mayfield, who testified that he saw the deceased in March, having been called in, and that he was suffering from la grippe; that he died from la grippe and an abscess in the lung.

Dr. O'Kelly testified as follows:

"He died of pneumonia, la grippe, about the 26th day of April, 1916. I went to see him first about the 25th of February, 1916, as well as I remember. He had been sick before that time and called me in in January." The time he saw him in January was when he was first sick. He also testified: "The first time I saw him," referring to his last illness, "was about the 25th of February." "He took a chill the evening before on his way to school and stopped at Hobbs'. I think he was teaching school when he got sick. That is my impression. He had pneumonia and la grippe. He was sick from the 25th day of February to the 26th day of April, 1916, when he died from the effect of pneumonia and la grippe. I did not think he was very sick the first few days."

The plaintiffs put on two witnesses, W. L. Stafford and A. Q. Riles.

Stafford testified as follows:

The last time he saw him was in February, "I think. Did not know before that about his school being dismissed because of his sickness. I cannot tell you exactly what time in February I saw Mr. Burgess; I saw him several evenings down at the store. I saw his son with a policy of life insurance. Mr. Burgess was a well man at that time after the policy was delivered to him. He was teaching school; he taught the next week." This witness stated that he saw a policy, but did not...