Dodt v. Prudential Insurance Company of America

• Decision Date: 08 December 1914
• Citation: 171 S.W. 655,186 Mo.App. 168
• Parties: MARY DODT, Respondent, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant
• Court: Missouri Court of Appeals

171 S.W. 655

186 Mo.App. 168

MARY DODT, Respondent, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant

Court of Appeals of Missouri, St. Louis

December 8, 1914

November 5, 1914, Argued and Submitted

Appeal from St. Louis City Circuit Court.--Hon. George C. Hitchcock Judge.

Judgment affirmed.

Fordyce Holliday & White for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence at the close of plaintiff's testimony, because plaintiff admitted that the defendant carried out its contract with her. Bishop on Contracts, sections, 779 781-784; 7 Am. & Eng. Ency. of Law (2 Ed.), p. 125 (e); 9 Cyc. 647 (e); Collins v. Whigham, 58 Ala. 438; Boniol v. Henaire, 10 Mart. (O. S.) 357; Twaits v. Penna. R. Co., 75 A. 1010; Kolachny v. Galbreath, 26 Okl. 772; Frank Oil Co. v. Belleview Gas & Oil Co., 119 p. 260; Laughlin v. U. S. Rolling Stock Co., 64 F. 25; Ramsey v. Waltham, 1 Mo. 395. (2) The court erred in overruling defendant's demurrer to the evidence at the close of defendant's testimony, because all the testimony in the case showed that defendant had in good faith carried out its contract with plaintiff. Authorities under point 1. (3) The court erred in giving plaintiff's instruction because it did not cover the question of whether defendant had performed its contract or not. Clark v. Hammerle, 27 Mo. 55; Hoffman v. Parry, 23 Mo.App. 20; Martin v. Johnson, 23 Mo.App. 96; Hayner v. Churchill 29 Mo.App. 676; Willmott v. Railroad, 106 Mo. 535; Holladay-Klatz Land & Lumber Co. v. T. J. Moss Tie Co., 87 Mo.App. 167; Griffith v. Conway, 45 Mo.App. 574; Carroll v. Railroad, 60 Mo.App. 465; Walker v. Phoenix Ins. Co., 62 Mo.App. 209; Mallmann v. Harris, 65 Mo.App. 127; Laughlin v. Gerardi, 67 Mo.App. 372; Link v. Westerman, 80 Mo.App. 592; Austin v. St. Louis Transit Co., 115 Mo.App. 146; Zeis v. St. Louis Brewing Ass'n, 205 Mo. 638; Cytron v. St. Louis Transit Co., 205 Mo. 692; Flaherty v. St. Louis Transit Co., 207 Mo. 318; State ex rel. Shipman v. Allen, 124 Mo.App. 465; Trimble v. Moore, 125 Mo.App. 601; Warrington v. Kallaner, 135 Mo.App. 5; Packing Co. v. Mertens, 150 Mo.App. 583. (4) The court erred in allowing plaintiff to recover punitive damages, because the question presented in this case is an entirely new question involving the construction of a clause in an insurance policy that has never been construed by the courts of this State and which defendant had a right to have tried out without being subjected to any penalty. Rogers v. Insurance Co., 157 Mo.App. 671. Renfro v. Insurance Co., 148 Mo.App. 258.

James J. O'Donohoe for respondent.

(1) That part of the policy limiting the appellant's liability to a return of the premiums paid thereon is invalid because contravening the misrepresentation statute. Section 6937, R. S. Mo. 1909; Buchholz v. Ins. Co., 177 Mo.App. 683; Roedel v. Ins. Co., 176 Mo.App. 584; Coscarella v. Ins. Co., 175 Mo.App. 130; Ins. Co. v. Stiewing, 173 Mo.App. 108; Welsh v. Ins. Co., 165 Mo.App. 233; Frazier v. Ins. Co., 161 Mo.App. 709; Lynch v. Ins. Co., 150 Mo.App. 461; Salts v. Ins. Co., 140 Mo.App. 142; Burns v. Ins. Co., 141 Mo.App. 212; Burridge v. Ins. Co., 211 Mo. 158; Williams v. Ins. Co., 73 Mo.App. 612; Kern v. Legion of Honor, 167 Mo. 471; Keller v. Ins. Co., 58 Mo.App. 557; Whitfield v. Ins. Co., 205 U.S. 489; Ins. Co. v. Coleman, 58 Ga. 251; Ins. Co. v. Leslie, 47 Ohio St. 409; King Brick Mfg. Co. v. Ins. Co., 164 Mass. 291; Emery v. Ins. Co., 52 Me. 322; Day v. Ins. Co., 81 Me. 244. Warranties have been abolished in this State. Sec. 6937, R. S. Mo. 1909; Ashford v. Ins. Co., 98 Mo.App. 505; Jacobs v. Life Assn., 146 Mo. 523; Aloe v. Life Assn., 164 Mo. 675; Sheurmann v. Ins. Co., 165 Mo. 641; Jenkins v. Ins. Co., 171 Mo. 383. Stipulations inserted in policies to evade statutes and to modify liability are uniformly condemned. Harms v. Casualty Co., 172 Mo.App. 241; Burridge v. Ins. Co., 211 Mo. 158; Karnes v. Ins. Co., 144 Mo. 413; Williams v. Ins. Co., 73 Mo.App. 612; Keller v. Ins. Co., 58 Mo.App. 557; Price v. Ins. Co., 48 Mo.App. 281. (2) Where the amount is fixed or liquidated the payment of a sum less than the amount due does not deprive the beneficiary of a right to prosecute a suit for the residue. Harms v. Casualty Co., 172 Mo.App. 241; Biddlecom v. Assurance Co., 167 Mo.App. 581; Head v. Ins. Co., 241 Mo. 403; Hanson v. Crawford, 130 Mo.App. 232; Goodson v. Nat. Masonic Accident Assn., 91 Mo.App. 339; Jenkins v. Ins. Co., 79 Mo.App. 55. (3) Respondent's viewpoint was and now is that there was no issue to be submitted to the jury beyond the questions of damages and attorney's fee, and plaintiff's instruction covered the same. But if plaintiff's instruction was insufficient, it was the duty of defendant to request further instructions covering the whole case, and failing to do so, it cannot complain of the insufficiency of plaintiff's. Knight v. Kansas City, 138 Mo.App. 153; Ghere v. Zey, 128 Mo.App. 362; Fisher v. Railroad, 198 Mo. 562; Carpenter v. Hamilton, 185 Mo. 603. Plaintiff's instruction is not erroneous, even if designed to cover the whole case, because it failed to include the defenses. Meily v. Railroad, 215 Mo. 567. Mere nondirection is not reversible error. Morgan v. Mulhall, 214 Mo. 451. The court, at the request of appellant, submitted to the jury every conceivable issue and the finding thereupon is binding on both parties. Jones v. Brownlee, 161 Mo. 258; Horgan v. Brady, 155 Mo. 659; Dunlap v. Griffith, 146 Mo. 292; Berkson v. Railroad, 144 Mo. 220; Reardon v. Railroad, 114 Mo. 384; Wilkins v. Railroad, 101 Mo. 105; Thorpe v. Railroad, 89 Mo. 650; Homes v. Braidwood, 82 Mo. 610. (4) There is no new question involved in this case (cases cited under point 1) and the court was bound, under the repeated rulings of the appellate courts of this State to submit the questions of damages and attorney's fees to the jury. Lehmann v. Ins. Co., 167 S.W. 1047; Stix v. Travelers' Indemnity Co., 175 Mo.App. 171; Jones v. Ins. Co., 173 Mo.App. 1; Troll v. Ins. Co., 172 Mo.App. 12; Cox v. Ins. Co., 154 Mo.App. 464; Utz v. Ins. Co., 139 Mo.App. 153; Kellogg v. Ins. Co., 133 Mo.App. 391.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

Plaintiff instituted this action before a justice of the peace, filing a statement in which he claimed that, under a policy issued by the defendant company, of date Sept. 5, 1910, it had insured Joseph Dodt, her husband, promising to pay in case of his death six months after the date of the policy, the sum of $ 153 or, if he died within six months after the date of the policy, only half of the face of the policy, to-wit, $ 76.50. Averring that the insured died on or about February 23, 1911; that plaintiff was his wife and is now his widow; that he was insured and carried this policy in the defendant company at the date of his death and had complied with all the conditions and provisions of the policy to be performed by him; that after his death plaintiff had notified defendant thereof and furnished it with due proofs of death and demanded payment of one-half the face of the policy, but that defendant had vexatiously refused to pay it and disclaimed all liability thereunder, judgment is prayed for $ 76.50, less 3.90, and interest thereon at six per cent per annum, together with ten per cent thereon as damages, and a reasonable attorney's fee for vexatious refusal to pay the amount of the policy and for costs. From a judgment in favor of plaintiff before the justice, defendant took an appeal to the circuit court, where the case was tried before the court and a jury.

There was no question as to the issue of the policy, its date and amount, nor as to the fact of the death of the insured within six months of the date of the policy, nor as to the fact that plaintiff is his widow. The defense relied upon rests upon one of the provisions in the policy called "first preliminary provision," which reads: "The company's liability under this policy shall be limited to a return of the premiums paid hereon if the insured die before the date hereof, or if on said date the insured be not in sound health." It is in evidence that shortly after the death of the insured an agent of the defendant company called upon plaintiff and represented to her that he had ascertained that her husband was not in good health at the time the policy was issued to him, and that under this provision of the policy the company's only liability was for the return of the premiums paid thereon; that these amounted to $ 3.90, which amount the agent paid plaintiff by check, taking her receipt therefor as in release of all claims under the policy.

The testimony of plaintiff was to the effect that her husband had died of heart disease, he being confined to his bed from December 24, 1910, to the time of his death. The testimony on the part of defendant was to the effect that the insured had not been "in good health" for some time prior to the issuing of the policy. Under what particular form of ill health the insured was suffering was not in evidence, and there is no evidence in the case that his condition of health at the time the policy was issued to him was of such a character that it actually contributed to his death.

If the receipt or release, in part relied upon, is valid, then plaintiff has no case. The effect of the payment of $ 3.90 depends upon the question as to whether this policy, as interpreted by its terms and under our law, is one calling for the payment of one-half the face of the policy, as claimed, to-wit, the sum of $ 76.50, or merely for the return of the premiums paid and interest, which it appears amounted to $ 3.90. Some effort is made on the part of defendant's counsel to show that this $ 3.90 was paid and received...