Connor v. United Ins. Co.

• Decision Date: 06 May 1958
• Docket Number: No. 29886,29886
• Citation: 313 S.W.2d 222
• Parties: Henrietta CONNOR (Plaintiff), Respondent, v. UNITED INSURANCE COMPANY, a Corporation (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 222

313 S.W.2d 222

Henrietta CONNOR (Plaintiff), Respondent, v. UNITED INSURANCE COMPANY, a Corporation (Defendant), Appellant.

No. 29886.

St. Louis Court of Appeals, Missouri.

May 6, 1958.

Motion for Rehearing or to Transfer to Supreme Court Denied

June 6, 1958.

John D. Gallagher, Samuel J. Goldenhersh, Goldenhersh, Goldenhersh, Koebel & Gallagher, St. Louis, for appellant.

N. Murry Edwards, Ninian M. Edwards, St. Louis, for respondent.

HOUSER, Commissioner.

Action by Henrietta Connor, beneficiary, against United Insurance Company to recover the proceeds of a policy issued by defendant insuring the life of plaintiff's daughter, Leanner Reed. A jury in the Circuit Court of the City of St. Louis returned a verdict for plaintiff for $1,000 (the face amount of the policy), $100 for vexatious delay, $750 attorneys' fees and $75 interest, aggregating $1,925. Defendant has appealed on the ground that the court erred in failing to direct a verdict for defendant and in giving Instructions Nos. 1 and 2.

The petition was in conventional form. Defendant filed a general denial.

Defendant's first point is that the court erred in not directing a verdict for defendant at the close of all the evidence for breach of contract on the part of plaintiff in failing to comply with a condition in Section 9, subsection 3, page 2, of the policy that

'if the insured within two years before the date hereof has received institutional hospital, medical or surgical treatment or attention, and the insured or any claimant under this policy fails to show that the condition, indicating such treatment or attention was not of a serious nature or was not material to the risk and in any case heretofore mentioned from the date of this policy for one year, if that is in the contract the company may declare this policy void either before or after death of the insured unless such case is waived by the company.'

Defendant argues that it showed by uncontradicted medical testimony that within two years prior to the issuance of the policy deceased was suffering from a serious condition for which she was hospitalized and which ultimately caused her death (disease of the lung) and that plaintiff did not go forward with proof, as required by the voidability clause, that the condition was not of a serious nature or was not material to the risk.

Under this record there was no error in overruling defendant's motion for a directed verdict. The voidability clause imposed a condition by which liability would be defeated if plaintiff failed to sustain the burden of proving that the treatment or attention was not of a serious nature or was not material to the risk. Brown v. Metropolitan Life Ins. Co., 236 Mo.App. 315, 151 S.W.2d 499. For such condition to be relied upon as a defense, however, it had to be pleaded. 'Exemptions, exceptions, warranties, conditions, and other provisions undertaking to cut down, limit, or defeat liability, or to forfeit the insurance, must be pleaded, if relied upon as defenses by the insurer.' Shapiro v. American Surety Co. of New York, Mo.App., 259 S.W. 502, and cases cited; Friedman v. State Mut. Life Assur. Co. of Worcester, Mass., Mo.App., 108 S.W.2d 156; Boillot v. Income Guaranty Co., 231 Mo.App. 990, 83 S.W.2d 219; Parker v. Atlanta Life Ins. Co., Mo.App., 112 S.W.2d 885; Whited v. Guarantee Trust Life Ins. Co., Mo.App., 237 S.W.2d 915. Defendant did not plead facts invoking the voidability clause as an affirmative defense. Defendant merely pleaded a general denial. The defense, therefore, was not available to defendant unless the issue was tried by the express or implied consent of the parties. See Section 509.500 RSMo 1949, V.A.M.S. It was not so tried. Defendant's offer of the voidability clause and of the deposition of the attending physician was strenuously objected to by plaintiff's counsel on the specific ground that the defense was not pleaded and that accordingly defendant was not entitled to invoke it. Plaintiff at no time waived the objection. The evidence was inadmissible under the issues framed by the pleadings. (The trial court gave defendant an opportunity during the trial to amend its answer so as to set up the affirmative defense based upon the voidability clause but defendant declined to amend.) Plaintiff made a prima facie case by showing that policy No. B 6806474, on which suit was filed, providing $1,000 insurance on the life of plaintiff's daughter, naming plaintiff as beneficiary, was issued by defendant and went into effect in June, 1955; that plaintiff continued to make payment of premiums thereon until the death of insured; that insured died January 6, 1956, demand and refusal to pay. The defense based upon the voidability clause not having been pleaded and the evidence in support of that defense therefore not having been admissible, the court did not err in overruling defendant's motion for a directed verdict. On the state of the record as it comes here it would have been error for the trial court to sustain the motion.

Defendant's second point is that the court erred in giving Instruction No. 1 because it assumed a material and contested issue of fact and did not require the jury to find that deceased was insured by the policy upon which suit was filed and that said policy was in full force and effect at the time of insured's death. Instruction No. 1 follows:

'The Court instructs the jury that if you find and believe from the evidence that Leanner Reed, the insured, died on January 6, 1956, then you will find for the plaintiff and against the defendant and allow the plaintiff the sum of $1,000.00 and in addition thereto, you may allow the plaintiff 6% interest per annum of $1,000.00 from January 6, 1956, to the present time.'

This point must be sustained. The defense of lapse and forfeiture of a life insurance policy for non-payment of premiums is an affirmative defense, Wilson v. Kansas City Life Ins. Co., 233 Mo.App. 1006, 128 S.W.2d 319; Parker v. Atlanta Life Ins. Co., supra, which must be specially pleaded. Rieger v. London Guarantee & Accident Co. of London, England, 202 Mo.App. 184, 215 S.W. 920, loc. cit. 928; Shaw v. Mutual Protective Ins. Co., Mo.App., 9 S.W.2d 685, loc. cit. 687; 46 C.J.S. Insurance Sec. 1297 b. Defendant did not plead this defense. Defendant simply filed a general denial. If proper and timely objection had been made, defendant's evidence of lapse would have been inadmissible under the pleadings. Although not developed in the pleadings the issue of whether policy No. B 6806474 was in full force and effect on January 6, 1956 or had lapsed was fully litigated at the tiral. Both parties treated the question of lapse as an issue in the case. Both parties took directly contradictory dictory positions with respect to the payment or non-payment of premiums on the policy sued upon, and as to the question of which policy (No. B 6806474 or No. B 6968959) was in effect at the time of insured's death. Plaintiff testified that she applied for and had issued to her one policy and one policy only and that she continued to pay premiums on that policy and 'never missed it once from then on.' She sued on policy No. B 6806474, which she claimed had not lapsed but was in full force at the time of her daughter's death, and she denied that any other policy was ever applied for or issued by defendant on the life of her daughter. After defendant's agent testified that Leanner Reed signed an application in St. Louis on October 27, 1955 for a second policy plaintiff took the stand in rebuttal and denied that her daughter was ever in St. Louis after June 9, 1955 or that Plaintiff ever saw her daughter alive after the latter date. Directly contradicting plaintiff's position defendant introduced oral and documentary evidence that policy No. B 6806474, issued June 27, 1955, lapsed for...