Distassio v. American United Life Ins. Co.

• Decision Date: 06 March 1944
• Parties: Elizabeth Distassio, Respondent, v. American United Life Insurance Company, Appellant
• Court: Kansas Court of Appeals

179 S.W.2d 610

238 Mo.App. 279

Elizabeth Distassio, Respondent, v. American United Life Insurance Company, Appellant

Court of Appeals of Missouri, Kansas City

March 6, 1944

Appeal from Jackson Circuit Court; Hon. John F. Cook, Judge.

Reversed.

Robert A. Adams, John S. Marley and Sebree, Shook & Gisler for appellant.

(1) The court erred in failing to sustain the demurrer to the evidence, and in failing to enter judgment for the defendant. (a) Evilsizer did not have authority, actual or apparent, to make an oral contract of life insurance, and no contract was made. 2 Am. Juris., p. 80; Slocum v. New York Life Ins Co., 228 U.S. 364, 57 L.Ed. 879; Salisbury v Indiana & Ohio Livestock Ins. Co., 202 S.W. 412; Herndon v. Triple Alliance, 45 Mo.App. 426; Mathews v. New York Life Ins. Co., 128 S.W.2d 327 332; New York Life Ins. Co. v. Fletcher, 117 U.S. 519, 29 L.Ed. 934; Braman v. Mutual Life Ins. Co., 73 F.2d 391; State ex rel. Mutual Life Ins. Co. v. Shain, 329 Mo. 621, 98 S.W.2d 690; Floyd v. Life & Cas. Ins. Co., 198 S.W.2d 620, 625. (b) The minds of the parties did not meet on a present oral contract of life insurance, and no contract was made. Byrne v. Prudential Ins. Co. of America, 88 S.W.2d 344; Drake v. Mo. State Life Ins. Co., 21 F.2d 39; Salisbury v. Indiana & Ohio Livestock Ins. Co., 202 S.W. 412; Patterson v. Prudential Ins. Co. of America, 23 S.W.2d 198; Chamberlain v. Prudential Ins. Co., 109 Wis. 4, 85 N.W. 128. (2) The court erred in overruling appellants' motion to strike out the testimony of witness Distassio in regard to oral statements made by agent Evilsizer. Bankers' Reserve Life Co. v. Yelland, 41 F. 684; Field v. Mo. State Life Ins. Co. (Utah), 290 P. 979; People's Ins. Co. v. Parker (Va.), 20 S.E.2d 485; Hyder v. Met. Life Ins. Co. (S. C.), 190 S.E. 239; Tarvar v. Swann (Ga.), 137 S.E. 126; McGregor v. Met. Life Ins. Co. (Ky.), 136 S.W. 889; Prince v. State Mut. Life Ins. Co. (S. C.), 57 S.E. 766; Albright v. State Ins. Co. (Neb.), 113 N.W. 793. (3) The court erred in assessing penalties and attorneys' fees. Otto v. Met. Life Ins. Co., 228 Mo.App. 742, 72 S.W.2d 811; Butler v. Equitable Life Assur. Society, 233 Mo.App. 94, 93 S.W.2d 1019; Bandy v. East & West Ins. Co., 163 S.W.2d 350; State ex rel. v. Fidelity & Deposit Co., 317 Mo. 1078, 298 S.W. 83; State ex rel. v. Shain, 334 Mo. 385, 66 S.W.2d 871; Camp v. John Hancock Mut. Life Ins. Co., 165 S.W.2d 277; State ex rel. v. Hughes, 152 S.W.2d 132.

Donald O'Hern, C. W. Crossan and Bruce Barnett for respondent.

There being no evidence of any knowledge upon the part of Mrs. Pitassi as to any secret limitation upon said Evilsizer's apparent authority as general agent, the contract he made with Mrs. Pitassi on appellant's behalf is binding upon it. Jas. H. Forbes Tea & Coffee Co. v. Baltimore Bank, 345 Mo. 1151, 1157 [3], 139 S.W.2d 507, 31; Baker v. K. C., St. Joseph & Council Bluffs R. R. Co., 91 Mo. 159; S.W. Mo. El. Ry. Co. v. Mo. Pac. Ry. Co., 110 Mo.App. 300, 309; Gaines v. Bershire Life Ins. Co., 228 Mo.App. 319, 323, 68 S.W.2d 905, 907; Lanowah Inv. Co. v. John Hancock Mut. Life Ins. Co., 162 S.W.2d 307, 309. (2) The contract sued upon, i. e., the oral contract of insurance entered into between appellant and Jennie Madeline Pitassi, was not abrogated, nor abandoned, nor modified, nor merged into the application later signed by her for the reason that said application evidenced, not a contract, but merely an offer upon her part never accepted by appellant and the same therefore had no contractual effect whatsoever. Knight v. Glenn Falls Ins. Co., 20 S.W.2d 941, 943; Levine v. Hochman, 217 Mo.App. 76, 87, 273 S.W. 204, 207; Bowers v. Bell, 193 Mo.App. 210, 182 S.W. 1068, 1071; P-H. Lumber Co. v. Thielen, 271 Ill.App. 269; Peerless Petticoat Co. v. Colpak-Van Costume Co., 273 Mass. 289, 292; Alderman Bros. Co. v. Westinghouse Co., 103 A. 267, 268. (3) The allowance of attorney's fee because of appellant's vexatious refusal to pay was most righteous in view of the fact that there is no dispute as to the facts and the law applicable thereto is abundantly established by the decisions of this and other states. Bigalke v. Mut. Life Ins. Co., 34 S.W.2d 1019, 1023; Exchange Bank v. Turner, 14 S.W.2d 425, 433; Butler v. Equitable Life Assurance Society, 233 Mo.App. 94, 110, 93 S.W.2d 1019, 1027; Evans v. Great Northern Life Ins. Co., 167 S.W.2d 118, 125; Coscarella v. Met. Life Ins. Co., 175 Mo.App. 130, 139, 157 S.W. 873, 875; Gibson et al. v. Pioneer Life Ins. Co., 181 Mo.App. 302, 311, 168 S.W. 818, 821; Stix v. Travelers Ins. Co., 175 Mo.App. 171, 180, 157 S.W. 870, 873; Liebel v. Met. Life Ins. Co., 241 S.W. 647, 649; Murray v. Niagara Fire Ins. Co., 265 S.W. 102, 104; Novosal v. Mid-West Life Ins. Co., 276 S.W. 87, 88; Lemaitre v. National Casualty Co., 195 Mo.App. 599, 606, 186 S.W. 964, 966; Rush v. Met. Life Ins. Co., 63 S.W.2d 453, 456; Rice v. Provident Life & Acc. Ins. Co., 231 Mo.App. 560, 569, 102 S.W.2d 147, 152.

Cave, J. Bland, J., concurs; Shain, P. J., not sitting.

OPINION

CAVE

This suit is based on an alleged parol contract of life insurance on the life of Jennie Pitassi, daughter of plaintiff, for $ 1500, purporting to have been made by a representative of the defendant who had, or apparently had, the authority of a general agent. A jury was waived, trial by the court and finding and judgment for plaintiff in the sum of $ 2785, which included interest, penalties and attorneys' fees. Motion for new trial overruled, and appeal perfected.

Defendant contends its demurrer to the evidence should have been sustained. The evidence concerning the parol contract is found in the testimony of witness Tony Distassio, a son of the beneficiary, and a brother of the insured. He testified that about February 1, 1941, his sister, the insured, told him that she wanted to take out some life insurance and he communicated that fact to an acquaintance of his, Hazel Chapman, who was an insurance agent and worked for one Thomas Evilsizer, who is the person charged to have made the parol contract sued on. Miss Chapman told him that she would have an agent call on his sister. On that same day, Evilsizer came to his home and met the insured and discussed with her the question of taking out a life insurance policy. They did not arrive at an agreement on that day because his sister was undecided whether she wanted a $ 1500 or a $ 2000 policy. Within a few days, she decided to take a $ 1500 policy and had him telephone Evilsizer, who came to his home, and the following conversation took place between Evilsizer and the insured: "Q. Now, did your sister advise him that she wanted a $ 1500 policy? A. Yes, sir. Q. That was the smaller amount discussed? A. Yes, sir. Q. The other was $ 2000? A. Yes, sir. The other was $ 2000. Q. Did he tell her how much the premium would be on the policy for three months? A. Yes, sir. Q. Do you remember the amount? A. $ 10.58 -- I am not sure. Q. Did Mr. Evilsizer ask your sister any questions at that time? A. Yes, sir. He asked her name and her age and where she lived at and who she wanted to leave the insurance to. Q. Did he ask her also about the name of her doctor? A. Yes, sir. Q. And asked her who the insurance would be payable to? A. Yes, sir. Q. What did she tell him about the insurance being payable? A. She wanted it left to her mother. In case of her mother's death, she wanted it left to her daughter. Q. What is the mother's name? A. Elizabeth Distassio. Q. And the daughter's name? A. Amalia Pitassi. Q. Did Mr. Evilsizer then ask her to pay him the ten dollars and some cents premium? A. Yes, sir. Q. What did your sister say? A. Well, she didn't want to pay it unless she got the policy. Q. What did Mr. Evilsizer then say to her? A. Well, he said that it was always best to pay a little because she would be insured from that day on and then he went on to tell her the story about this fellow getting killed. . . . Q. When did Mr. Evilsizer tell her her insurance would commence? A. At the time she paid her premium. Q. And she did pay him the premium? A. No, she didn't have it all and she paid him $ 5. Q. $ 5? A. Yes, sir. Q. Now, how did she happen to pay only $ 5. A. Well, he said "if you don't have it all, I will be glad to take $ 5", and the rest when he delivered the policy. Q. I believe you said she borrowed the money from you? A. Yes, sir. Q. And she gave it to Mr. Evilsizer? A. Yes, sir. Q. Did Mr. Evilsizer, after she paid the money, tell her that she was insured right at that time? A. Yes, sir, he told her. Q. Now, after that, did Mr. Evilsizer have her sign a blank paper? A. Yes, sir. Q. What did he tell her when he asked her to sign that? A. Not anything. He told her to sign it and he would fix it up and send it in to the insurance company. Q. He said that he would fix it up and send it in? A. Yes, sir. Q. Did he read anything to her in that application? A. No, sir. Q. Did he read to her any part of that application that said that it was agreed that the insurance would not be effective until a policy had been delivered to her? A. No, sir. Q. He simply asked her to sign the blank paper? A. Yes, sir. Q. And told her he would fill it up later? A. Yes, sir. Q. And you say your sister died on February 11, 1941? A. Yes, sir."

It is in evidence that the insured did sign an application for a $ 1500 life insurance policy at the time of the above conversation, and that Evilsizer sent the application to defendant's home office in Indianapolis, Indiana, and in due time a policy was issued and sent to Evilsizer, who went to insured's home for the purpose of delivering it and found that she had died several days prior, and the policy was never delivered to any one. He returned the $ 5 to Tony Distassio, which had been paid to him at the time of...