Childers v. National Life & Accident Ins. Co.
| Decision Date | 07 April 1931 |
| Docket Number | No. 21606.,21606. |
| Citation | 37 S.W.2d 490 |
| Court | Missouri Court of Appeals |
| Parties | CHILDERS v. NATIONAL LIFE & ACCIDENT INS. CO. |
Appeal from Circuit Court, St. Louis County; Arthur V. Lashly, Judge.
"Not to be officially published."
Action by Clark James Childers against the National Life & Accident Insurance Company. From the judgment, defendant appeals.
Affirmed.
B. E. Hamilton, of St. Louis, for appellant.
William W. Sleater, Jr., and Paul H. Calman, both of St. Louis, for respondent.
This is an appeal from a judgment upon an insurance policy issued by defendant upon the life of the wife of plaintiff.
The petition is in the usual form in such cases, alleging the issuance and delivery of the policy, June 10, 1929, on the life of Mary Childers, the wife of plaintiff, he being named as beneficiary, for the sum of $390; that while the policy was in full force and effect the insured died on September 25, 1929; that due proofs of death were submitted to defendant, and although the terms and conditions of the policy had been complied with, the defendant refused to pay the amount agreed upon. The petition prayed judgment for the amount of the policy with interest, 10 per cent. of the principal for vexatious delay and refusal to pay and a reasonable attorney's fee.
By its amended answer the defendant admitted the issuance and delivery of the policy sued on. It then alleged that in said policy it was provided that no obligation was assumed by the company prior to the date thereof, nor unless on said date the assured was alive and in sound health; that the policy further provided that should the proposed assured not be alive and in sound health on the date thereof any amount paid to the company as premiums should be returned thereon; that at the time the policy was issued the assured was not in sound health, but was sick and suffering from cerebral softening and that on the 25th day of September 1929, the assured died from said disease; that there was paid in premiums the sum of $5.40 and it tendered and paid in court said sum.
The policy did provide that
The policy also contained a provision for furnishing proofs of death upon blanks to be furnished by the company, and also provided that the same "shall contain the record, evidence and verdict of the Coroner's inquest, if any be held."
The application for the policy does not appear to have been offered in evidence, but a witness for the defendant produced the same and testified that among the questions was one, No. 23, to question 18, "Are you in good health?" to which the reply was in the affirmative and that was all concerning the applicant's health.
The plaintiff offered in evidence the proofs of loss in which the claimant answered as to the cause of death that it was hemorrhage of the brain; that deceased first consulted any physician for her last illness on July 1, 1929, and was treated at the City Hospital for two days beginning September 12; that she consulted Dr. Tremain during her last illness.
To the proofs of death was attached a copy of the verdict of the coroner's inquest, which recited that the deceased came to her death on September 25, 1929, "from cerebral softening, due to hemorrhage of right ventrical of the brain caused by falling downstairs about eight months ago."
Plaintiff testified that the deceased was his wife to whom the policy was issued, and to the fact that thirty days after the defendant was notified of her death it refused to pay the policy. On cross-examination he testified that some time in November, 1928, his wife had a fall at Elvins, Mo., when she struck the back of her head or neck, that a doctor was not called, but she complained of headaches the following day but did not complain thereafter, previous to June, 1929; that about the middle of July his daughter went to Dr. Tremain and got some medicine for his wife, and Dr. Tremain was called to see her on September 24, 1929; that she was in the City Hospital about three days from September 12, 1929.
The plaintiff also introduced evidence that $100 would be a reasonable attorney's fee.
The defendant offered in evidence the physician's statement signed by Dr. George W. Tremain, in which he stated in answer as to the cause of death that it was cerebral hemorrage of a duration, to his personal knowledge, of three days, and from history given, eight months.
The plaintiff introduced some rebuttal testimony, but it is unnecessary to set it out.
The defendant's first contention is that the court erred in not giving an instruction, requested by it both at the close of the plaintiff's case and at the close of the whole case, to the effect that "the court instructs the jury that your verdict should be for plaintiff in the sum of Five ($5.40) Dollars and forty cents."
In support of its contention the defendant relies upon the cases of Hammers v. National L. & A. Ins. Co. (Mo. App.) 292 S. W. loc. cit. 1065, and Clark v. National L. & A. Ins. Co. (Mo. App.) 288 S. W. loc. cit. 945. In the first of the above-mentioned cases it appears that the insured was asked in the application as to what medical or surgical attention he had in the last five years, to which he answered, "None." It appeared, however, as a matter of fact, that in July preceding the date of the issuance of the policy he was attended by a physician for arteriosclerosis, malaria, which had a duration of ten days. The defendant in that case showed by the attending physician of the insured, and by two other doctors, that the insured could not have been in sound health, when the policy was issued, and die from hemorrhage of the brain occasioned by arteriosclerosis in the following January.
In the latter case (Clark v. National L. & A. Ins. Co.) the application for insurance was signed December 18, 1923, was delivered on December 31, 1923, and the insured died on January 6, 1924. In proofs of death furnished by plaintiff, the physician who attended her in her last illness stated that she died of thyro-toxicosis, and that the duration of the disease was three months. Upon the same certificate another physician certified that he had attended the insured once at her home in the early part of January, and she was suffering from acute symptoms of toxic thyroid. The defendant introduced two...
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