Evans v. Great Northern Life Ins. Co.

• Decision Date: 02 November 1942
• Citation: Evans v. Great Northern Life Ins. Co., 167 S.W.2d 118, 237 Mo.App. 317 (Kan. App. 1942)
• Parties: Elmer E. Evans, Respondent, v. Great Northern Life Insurance Co., Appellant
• Court: Kansas Court of Appeals

167 S.W.2d 118

237 Mo.App. 317

Elmer E. Evans, Respondent, v. Great Northern Life Insurance Co., Appellant

Court of Appeals of Missouri, Kansas City

November 2, 1942

Appeal from Grundy Circuit Court; Hon. V. C. Rose, Judge.

Affirmed.

Thomas J. Layson for respondent.

(1) Insured's death directly resulted from the disablement of an automobile. (a) The springing open of the car door under the circumstances in evidence was a disablement of the automobile within the meaning of the policy. Kimbraugh v Nat. Protective Ins. Ass'n, 225 Mo.App. 913, 35 S.W.2d 654; Inter-Southern Ins. Co. of Louisville, Ky v. Bowyer, 90 Ind.App. 494, 169 N.E. 65; Yoshie Maeda v. Sierra Nevada Life & Cas. Co., 109 Cal.App 271, 292 P. 987; Thomas v. Federal Life Ins. Co. (Iowa), 273 N.W. 862; Coghlan et al. v. Federal Life Ins. Co., 291 Ill.App. 188, 9 N.E.2d 457; Sant v. Continental Life Ins. Co. of St. Louis, 49 Idaho 691, 291 P. 1072; Johnson v. Fed. Life Ins. Co., 190 Minn. 580, 252 N.W. 666; Johnson et al. v. Fed. Life Ins. Co., 60 N.D. 397, 234 N.W. 661; Fed. Union Life Ins. Co. of Cincinnati v. Richey's Adm'x, 75 S.W.2d 767; Fed. Life Ins. Co. v. Sivels, 76 S.W.2d 608. (b) Appellant's use of the word "disablement" in the contract renders its meaning ambiguous entitling respondent to a favorable construction. Kimbraugh v. Nat. Protective Ins. Ass'n, 225 Mo.App. 913, 35 S.W.2d 654; Inter-Southern Life Ins. Co. v. Bowyer, 90 Ind.App. 494, 169 N.E. 65; King v. Walsh et al., 250 Mass. 462, 146 N.E. 47. (c) The appellant company did not limit its liability to instances where the automobile is, in fact, physically wrecked or mechanically disabled so it would not run. Kimbraugh v. Nat. Protective Ins. Ass'n, 225 Mo.App. 913, 35 S.W.2d 654. (2) (a) Respondent's Instruction Number 1 authorizing a verdict did not improperly go beyond the pleadings. Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W.2d 994, 995; Morris v. Equitable Assur. Soc. of the U.S., 340 Mo. 709, 102 S.W.2d 569; Rohde v. Met. Life Ins. Co., 233 Mo.App. 865, 111 S.W.2d 1006, 1009; Chambers v. Hines, 208 Mo.App. 222, 233 S.W. 949; Block v. Fidelity & Guaranty Co., 316 Mo. 278, 290 S.W. 429, 441. (b) The defective condition of the car door at the time respondent's wife was thrown from the car was an important evidentiary fact but was not an ultimate fact that necessitated a pleading of it in the petition. It tended to show disablement and was, therefore, properly submitted to the jury by respondent's Instruction Number 1. Rohde v. Met. Life Ins. Co., 233 Mo.App. 865, 111 S.W.2d 1006, 1009; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Chambers v. Hines, 208 Mo.App. 222, 233 S.W. 949; McDonald v. Kansas City Gas. Co. et al., 332 Mo. 356, 59 S.W.2d 37, 43; Petersen Oven Co. v. Cap Sheaf Bread Co., 21 S.W.2d 219, 221; Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W.2d 982, 994, 995. (c) Respondent, by his main instruction, was entitled to submit to the jury for its consideration all the facts and circumstances in evidence, and was entitled to all reasonable conclusions to be drawn therefrom. Genta v. Ross, 225 Mo.App. 673, 37 S.W.2d 969; Dockery v. Woodsmall (Mo. App.), 11 S.W.2d 1057, 1059; State ex rel. Smith v. Trimble et al. (Mo.), 285 S.W. 729, 731; Ford v. Wabash Ry. Co., et al. (Mo.), 300 S.W. 769, 774; Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W.2d 982, 994, 995; Hugh v. Picotte et al., 154 S.W.2d 382, 386. (d) The petition was broad enough to let in the evidence concerning the defective condition of the door and to show this by competent evidence, such testimony had to come from those who were present when the car door was previously sprung. Heckfuss v. American Packing Co., 224 S.W. 99, certiorari quashed State ex rel. American Packing Co. v. Reynolds et al., Judges, 287 Mo. 697, 230 S.W. 642. (e) No attack was made on the petition and no objection was made to the testimony of respondent when he testified about the previous injury to the car door. Smith v. Atlanta Life Ins. Co. (Mo. App.), 102 S.W.2d 757; State ex rel. Smith v. Trimble et al. (Mo.), 285 S.W. 729, 731; Ford v. Wabash Ry. Co. et al. (Mo.), 300 S.W. 769, 774; Lepchenski v. Mobile & O.R. Co. (Mo.), 59 S.W.2d 610, 615. (f) Appellant is in no position to complain that respondent's main instruction number 1 required the jury to find that the car door was in a defective condition when the door gave way causing the insured to be thrown from the automobile. Sec. 1228, R. S. Mo. 1939; Schaeffer v. Reineke (Mo. App.), 121 S.W.2d 213, 221. (g) Respondent's Instruction 1 did not assume facts: Green v. Kansas City (Mo. App.), 107 S.W.2d 104; Allen v. Purvis (Mo. App.), 30 S.W.2d 196, 201. (h) If the evidence concerning the defective condition of the door be classified as circumstantial, then the circumstances were sufficient to establish the defective condition of the car door. Krug v. Mutual Life Ins. Co. (Mo. App.), 149 S.W.2d 393, 400. (i) There was direct evidence that the car door was in a defective condition. Chambers v. Hines (Mo. App.), 208 Mo.App. 222, 233 S.W. 949; McDonald v. Kansas City Gas Co. et al., 332 Mo. 356, 59 S.W.2d 37, 43; Petersen Oven Co. v. Cap. Sheaf Bread Co. (Mo. App.), 21 S.W.2d 219, 221; Krug v. Mutual Life Ins. Co. (Mo. App.), 149 S.W.2d 393; Luechtefeld v. Marglous (Mo. App.), 151 S.W.2d 710, 714. (j) Similar evidence by respondent as a witness had previously been admitted without objection being made by appellant. Carroll v. Mo. Power & Light Co., 231 Mo.App. 265, 96 S.W.2d 1074; Bennette v. Hader et al., 337 Mo. 977, 87 S.W.2d 413; Dieterle v. Standard Life Ins. Co. (Mo. App.), 119 S.W.2d 440; Weaver v. Mobile & O. R. Co., 343 Mo. 223, 120 S.W.2d 1105, 1113; Delametter v. Home Ins. Co., 233 Mo.App. 645, 126 S.W.2d 262. (k) If doubt exists as to the relevancy and admissibility of testimony, the rule is to admit rather than to exclude the testimony. Luechtefeld v. Marglous (Mo. App.), 151 S.W.2d 710, 714. (3) The admission in evidence of Plaintiff's Exhibit F, the amended claim, was not improper or prejudicial. Wollums v. Mutual Ben. Health & Accident Ass'n, 226 Mo.App. 647, 46 S.W.2d 259, 267; Fay v. Aetna Life Ins. Co., 268 Mo. 273, 187 S.W. 161, 865. (4) (a) Appellant's denial of liability without assigning any reason for so doing was, in and of itself, sufficient to justify a recovery of penalty and attorney's fee for vexatious delay. Saffran v. Rhode Island Ins. Co. of Providence, R.I. (Mo. App.), 141 S.W.2d 98. (b) There was neither issues of fact nor law upon which appellant could contest respondent's right to recover on the policy. All the evidence and testimony in favor of respondent at the trial was fully known to appellant for several months prior to the institution of this suit. Stewart v. N. Am. Acc. Inc. Co., 33 S.W.2d 1005, 1009; Rush v. Met. Life Ins. Co. (Mo. App.), 63 S.W.2d 453; Andrews v. Washington Nat. Ins. Co. of Illinois, 93 S.W.2d 1045, 1047; Morris v. Equitable Assur. Soc. of the U.S., 340 Mo. 709, 102 S.W.2d 569, 574, 575. (c) The evidence at the trial showed that appellant issued this policy long after it had actual knowledge of the opinion and decision of this court rendered December 1, 1930, in the case of Kimbraugh v. National Protective Ins. Ass'n, 35 S.W.2d 654. Stewart v. North American Acc. Ins. Co., 33 S.W.2d 1005, 1007. (d) Appellant, nevertheless, wilfully obstructed respondent's effort to enforce payment of his claim. Stewart v. North Am. Acc. Ins. Co., 33 S.W.2d 1005; Porter v. Equitable Assur. Soc. of the U.S. (Mo. App.), 71 S.W.2d 766. (e) Before the filing of this suit respondent furnished all the particulars and laid all known facts before appellant, which showed that respondent was entitled to his claim for death benefits. Morris v. Equitable Assur. Soc. of the U.S., 340 Mo. 709, 102 S.W.2d 569, 574, 575. (f) Respondent's Instruction 2 on vexatious delay was proper. Porter v. Equitable Assur. Soc. of the U.S. (Mo. App.), 71 S.W.2d 766, 779; Rush v. Metropolitan Life Ins. Co. (Mo. App.), 63 S.W.2d 453, 456; State ex rel. Continental Life Ins. Co., of Kansas City v. Allen et al., 303 Mo. 608, 262 S.W. 43, 46; Patterson v. American Ins. Co., 174 Mo.App. 37, 44, 160 S.W. 62. (g) The jury was entitled to consider the appellant's conduct over all that period of time from the time respondent's claim was made until he instituted this suit. Porter v. Equitable Assur. Soc. of the U.S. (Mo. App.), 71 S.W.2d 766, 779; Rush v. Met. Life Ins. Co. (Mo. App.), 63 S.W.2d 453, 456; State ex rel. Continental Life Ins. Co., of Kansas City v. Allen et al., 303 Mo. 608, 262 S.W. 43, 46; Patterson v. American Ins. Co., 174 Mo.App. 37, 44, 160 S.W. 62. (h) Respondent's instructions on the form of verdict in the event the verdict was for respondent were proper and in approved form. Block v. U.S. Fid. & Guar. Co., 316 Mo. 278, 290 S.W. 429, 440. (i) Respondent's instructions 4 and 5 are entirely free from criticism formerly leveled against such instructions. Block v. U.S. Fid. & Guar. Co., 316 Mo. 278, 290 S.W. 429, 440. (j) The verdict of the jury was sufficient and in proper form. Block v. U.S. Fid. & Guar. Co., 316 Mo. 278, 290 S.W. 429, 441, 442.

P. H. Jackson, R. H. Moore and Harry A. Hall for appellant.

(1) The court erred in not giving defendant's instruction directing a verdict in defendant's favor. Kimbrough v. Nat. Prot. Ins. Co., 35 S.W.2d 654; Lutz v. Inter Southern Ins. Co. (Ky.), 33 S.W.2d 20; Pope v. Business Men's Assur. Co., 131 S.W.2d 887; Caldwell v. Travelers Ins. Co., 267 S.W. 907; Fed. Life Ins. Co. v. Boyd, 58 P.2d 490; Whiteman v. Fed. Ins. Co., 1 Fed. Rules Dec. 95; Sampson v. Postal Life Ins. Co., 78 S.W.2d 466. (2) Plaintiff's Instruction I was erroneous in that (a) it was broader than the pleadings, and (b) included matters not shown by the evidence....