Colley v. National Live Stock Ins. Company

• Decision Date: 12 December 1914
• Parties: JAMES W. COLLEY, Respondent, v. NATIONAL LIVE STOCK INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

171 S.W. 663

185 Mo.App. 616

JAMES W. COLLEY, Respondent, v. NATIONAL LIVE STOCK INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Springfield

December 12, 1914

Appeal from Lawrence County Circuit Court.--Hon. Carr McNatt, Judge.

Judgment affirmed.

M. S Meyberg and Charles L. Henson for appellant.

(1) The cost of the animal is material, and if incorrectly warranted in the application will avoid the policy. Johnson v. Ins Co., 120 Mo.App. 80; Ins. Co. v. Smith, 157 S.W. 755; Jacobs v. Ins. Co., 146 Mo. 523; Jenkins v. Ins. Co., 171 Mo. 375; Whitmore v Supreme Lodge K. & L., 100 Mo. 36; Van Cleve v. Union Casualty Co., 82 Mo.App. 668; Life Ins. Co. v. Glaser, 245 Mo. 377. (2) Evidence of estoppel cannot be introduced under a pleading which denies the matter set up in the answer. Estoppel when relied upon must be specially pleaded. Thompson v. Cohen, 127 Mo. 215; Groom v. Morrison, 249 Mo. 550; Ferneau v. Whitford, 39 Mo.App. 311; Bacon's Missouri Practice, sec. 194; Deming Investment Co. v. Shawnee Fire Ins. Co., 83 P. 918, 4 L.R.A. (N. S.) 607; Merchants' Natl. Ins. Co. v. Pearce, 84 Ill.App. 255; Evans v. Queen Ins. Co., 5 Ind.App. 198, 204, 31 N.E. 843; Kahler v. Iowa State Ins. Co., 106 Iowa 380, 76 N.W. 734. (3) An assured cannot escape the force and effect of statements made in his application for insurance by the mere claim that he signed the application without reading or having it read to him, but in the absence of deceit, fraud or misrepresentation he is bound by his signature to the same. Herndon v. Triple Alliance, 45 Mo.App. 426; New Madrid Banking Co. v. Poplin, 129 Mo.App. 121; Snider v. Adams Express Co., 63 Mo. 323; Palmer v. Insurance Co., 31 Mo.App. 472; Bank v. Asel, 154 Mo.App. 228. (4) Where the policy requires immediate notice of sickness prior to the animal's death and provides that a failure to give it shall avoid the policy, no recovery can be had if there has been a violation of the condition. Illinois Live Stock Ins. Co. v. Kirkpatrick, 61 Ill.App. 74; Green v. Live Stock Ins. Co., 87 Iowa 358, 54 N.W. 349.

Wm. B. Skinner for respondent.

(1) A plea of non est factum, supported by affidavit, imposes the burden of proving the execution of an instrument which is questioned, and, under such plea, evidence is admissible to show all the facts and circumstances surrounding the alleged execution of the same, which tend to prove that the signature of the party thereto has been procured by fraud, deception, imposition or misrepresentation, or that tends to show that, by reason of inability to read the same, his signature was procured to a paper other than the one he thought he was signing. Corby Executor v. Weddle, 57 Mo. 452; Smith Company v. Rembaugh, 21 Mo.App. 393; Law v. Crawford, 67 Mo.App. 153; Broyles v. Absher, 107 Mo.App. 177; Main v. Hall, 127 Mo.App. 717. (2) It is equally well established by the courts of last resort in this State that under the allegations in the petition, in an action on an insurance policy, "that all the conditions of the policy have been complied with," proof of waiver is permissible, and is proof of performance within the meaning of the conditions of the policy, without requiring the waiver relied on to be alleged in the pleadings. Modern Woodmen v. Angle, 127 Mo.App. 108; Thompson v. St. Charles County, 227 Mo. 230-231 and McCulloch v. Phoenix Ins. Co., 113 Mo. 616.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

--Plaintiff recovered judgment for the sum of $ 507.50 on a policy of insurance and an attorney's fee of $ 50 on account of defendant's vexatious refusal to pay.

The petition alleged that plaintiff was the owner of a jack, named Gregory, and that on January 29, 1913, the defendant by its policy insured said jack for a term of one year against "death by accident, disease, fire, lightning, cyclone, theft, or by reason of a broken leg when found necessary by attending veterinary to destroy the animal's life." It is also alleged that the jack died on January 23, 1914, and that before and after his death the plaintiff (respondent) performed all the terms and conditions of the policy and did all things required to be done by him, but that defendant declined to pay and its refusal to pay was vexatious.

The answer admits the issuance of the policy, but alleges that it was based upon an application therefor by the plaintiff to the defendant in which application the plaintiff warranted that he had paid $ 1000 for the jack, which was not true. The second defense was that the application to which the policy referred contained a promissory warranty that in case the animal should become sick the same would receive the care of a veterinary surgeon, and in this, defendant charged that plaintiff failed. As a third defense defendant alleged that the policy makes an exception and does not include death where the animal becomes sick and the plaintiff fails to at once notify the defendant company of its sickness by telephone or telegraph. It is alleged that the animal became sick on January 20th from which sickness he died on January 23d, and that plaintiff failed to give any notice whatsoever to defendant of the sickness.

The plaintiff for reply filed a general denial and a plea of non est factum, and--"further replying, plaintiff denies that he executed the application, the copy of which is set out and referred to in defendant's said answer." The reply is sworn to.

It is admitted that the application was by express terms made a part of the policy and that the policy was based entirely on the answers contained in the application, and that in the application which was signed by the plaintiff, the question, "What amount did you pay for the animal?" is answered, "One thousand dollars." The plaintiff admitted that the animal did not cost him $ 1000 but that $ 700 was the purchase price and that he paid $ 52 freight and expense to transport the jack from north Missouri to his farm. He testified that he signed the paper while out in the field where the defendant's agent came to write the insurance. The agent had been soliciting him to place an insurance policy on this jack. The plaintiff testified that he did not have his glasses with him when he signed the application, and that the agent of the defendant made up the application, putting down the answers that he (the plaintiff) gave, and that when it was finished he signed it but could not read it. He further stated that he told the agent exactly what the jack cost him and that the agent attempted to get him to answer that it cost him $ 1000 because of the original cost, the freight and expense of fixing up the lot and the barn or stall for the jack, as well as the cost of this insurance, but plaintiff says he refused to say the jack cost him $ 1000 on account of this, but on the other hand told the agent the actual facts as to the purchase of the jack for $ 700 and the expense of getting him there, $ 52, making the total cost $ 752, and that the agent then told him he could write him for $ 500 as the company insured for two-thirds of the amount paid for the animal; that he then told the agent to fix up the application so that he would be insured, and that, relying upon the agent to fix it just as he (the plaintiff) had related the facts, he signed the application under the circumstances as before detailed.

When the plea of non est factum was made by the plaintiff there was no motion filed by the defendant nor anything done to require the plaintiff to be more definite and specific in said plea.

Nor is it at all certain that it was necessary to have sworn to the reply because the application provided that the insurance should not be in force until and unless the application should be accepted by the company. This would make the contract one that was to be executed by more than one party, and hence does not fall within the rule in section 1985, Revised Statutes 1909, requiring a plea of non est factum to be under oath.

In the abstract presented the only reference made by any one to the failure of the plaintiff's reply to plead estoppel occurred during the statement of the case by plaintiff's attorney when he referred to what the evidence in this particular would disclose. Defendant objected to such statement for several reasons, one being that such a defense had not been pleaded. For a ruling, the court remarked, "Go ahead." The court was not required to pass upon the admissibility of evidence at that point in the trial and would naturally withhold a specific ruling on the question until the evidence was offered.

The testimony of the plaintiff went in without any objection having been made by the defendant as to it being evidence of a fraud or an estoppel which had not been specially pleaded. The only objection to this testimony interposed when this question was asked plaintiff--"What did you tell him? Tell the jury all that you told him about how you came to get the jack and the cost of it?"--was "We object to the question for the reason that it will throw no light on...