Dace v. John Hancock Mut. Life Ins. Co.
| Citation | 148 S.W.2d 93 |
| Decision Date | 04 March 1941 |
| Docket Number | No. 25587.,25587. |
| Parties | DACE v. JOHN HANCOCK MUT. LIFE INS. CO. |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; Thomas J. Rowe, Judge.
"Not to be reported in State Reports."
Action by Kate Dace against John Hancock Mutual Life Insurance Company on two nonmedical industrial life insurance policies. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Leahy, Walther, Hecker & Ely, of St. Louis, for appellant.
John C. Kappel, Jr., and Walter S. Berkman, both of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action upon two nonmedical industrial policies of life insurance — the one for $140, and the other for $84 — which were issued by defendant upon the life of John H. Dace, the brother of plaintiff, whose right to bring and maintain this action upon the policies is no longer in dispute.
Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the aggregate amount of $239.32. Judgment was entered accordingly; and defendant's appeal to this court has followed in the usual course.
The one policy was issued on April 6, 1938, and the other on April 20, 1938, both at a time when the insured was concededly suffering from heart disease, which caused his death on September 17, 1938.
Indeed, in anticipation of a defense being based (as it was) upon a breach of the sound-health provision of the policies, plaintiff admitted in her petition that the insured had suffered from heart disease before the time of the applications for and the issuance of the policies, but, in attempted avoidance of the consequence of such fact, alleged that defendant's agents and representatives who had sold the policies to the insured had been fully informed and notified of his condition.
The evidence disclosed that at and prior to the time of his applications for the policies, the insured was boarding with a Mrs. Lucy Glore, who herself had two policies issued by defendant upon which an agent of defendant, one Rice, had been making weekly collection of premiums for some four or five months before the time of the issuance of either of the policies to the insured.
Rice called at Mrs. Glore's home to collect the premiums due from her upon her own policies, and, in so doing, became acquainted with Dace, the insured in this case, who was not employed at any time while he boarded with Mrs. Glore, and would always be around the house on the occasion of Rice's periodic visits.
On March 6, 1938, a month to the day before the first of the two policies in suit was issued, Dace was taken to the City Hospital suffering from his heart condition, and when Rice next called for Mrs. Glore's premiums, he inquired as to Dace's whereabouts, and was told by her that "he was in the hospital" with a "heart attack".
Dace remained in the hospital for a week on this occasion; and when Rice next called to collect Mrs. Glore's premiums after Dace's return to her home, he apparently made his first suggestion with respect to selling Dace a policy.
According to Mrs. Glore, who had heard the conversation between the two men, Rice asked Dace how he was feeling, to which Dace replied that he was feeling "pretty good". Rice then inquired if he had insurance, and when Dace replied in the negative, Rice told him that "he ought to have".
About April 6, 1938, the date of the issuance of the first policy, Rice came out with his supervisor and solicited Dace to take out a policy of insurance. Rice inquired of the supervisor whether he thought Dace would "pass", whereupon the supervisor replied: "You write it today while I am here and I will put it through." No questions were asked Dace relative to his health; and the supervisor himself prepared the application, which Dace signed after it had been filled out and presented to him.
About two weeks after the issuance of the first policy, Rice came back alone and told Dace that "if he could take out another one then, right away after the first one was issued, why, he would have no trouble getting it". On this occasion, Rice filled out the application without asking Dace any questions relative to his health, and after Dace had signed the application, the second policy was issued, bearing date of April 20, 1938.
In the following July Dace again entered the hospital; and, as we have already pointed out, his death came on September 17, 1938, as the result of the heart condition which had had its inception in the previous March before the issuance of either of his policies.
There is only one point for our decision in the case, which is whether the court erred in its refusal of defendant's request for a peremptory instruction at the close of all the evidence.
Under the pleadings and evidence in the case, this point depends upon the question of whether defendant is to be held chargeable with the apparently uncommunicated knowledge of its agent, Rice, with respect to the heart condition of the insured at and prior to the time of the issuance of the policies. If so (assuming the truth of plaintiff's evidence on demurrer), defendant, in issuing the policies, must be taken as having waived the requirement of the same that the insured be in sound health in so far as concerned his heart condition of which Rice had actual knowledge; but if not, then the admitted fact that the insured was suffering from heart trouble at the date of the policies, and that he subsequently died from such disease, would have served to avoid the policies, in which event defendant's request for a peremptory instruction should have been sustained.
Generally speaking, notice to the agent is to be regarded as constituting notice to the principal, whether actually communicated to the principal or not, where the notice was received by the agent while he was acting within the scope of his authority, and had reference...
To continue reading
Request your trial