Foman v. Liberty Life Ins. Co.
| Decision Date | 13 June 1932 |
| Parties | JOE W. FOMAN, ADMR., RESPONDENT, v. LIBERTY LIFE INSURANCE COMPANY, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. C. Jasper Bell, Judge.
AFFIRMED.
Judgment affirmed.
Ralph S. Latshaw, Jr., and Ralph E. Griffith for respondent.
Carl R Johnson for appellant.
This is an action to recover on a policy of life insurance.
Defendant is a corporation, organized and existing under the laws of the State of Illinois, with its home office at the City of Chicago, in said State, and authorized to do business in the State of Missouri, and is engaged in writing life insurance.
The petition is formal, and alleges that on June 3, 1929 defendant, in consideration of a certain premium, agreed to insure the life of Exene Foman, under and by virtue of its policy No. I-15286, in the sum of $ 500; that on July 12 1929, while said policy was in full force and effect, said Exene Foman died; that thereupon, according to the terms of said policy, the face thereof became due and payable; that defendant was duly notified of insured's death and proof thereof was duly furnished defendant; that payment of the face of the policy was duly demanded which defendant had neglected and refused to pay, and that said refusal to pay was vexatious and without due cause; that said refusal made it necessary to employ attorneys to bring action thereon; that $ 250 is a reasonable attorney's fee for services rendered and to be rendered in the prosecution of said action. Judgment is asked in the sum of $ 500, the face of the policy, $ 50 for vexatious delay and $ 250 attorney's fee, together with 6 per cent interest from July 12, 1929.
The answer admits defendant's corporate status, and that it is engaged in writing life insurance in the State of Missouri and various other states, and generally denies all other allegations of the petition.
During the progress of the trial, and by leave of court, an amended answer was filed in which the corporate status of defendant and that it is licensed to do business in the State of Missouri were admitted, and that it issued its policy on the life of Exene Foman, as alleged in the petition. As affirmative defense, the amended answer alleges that at the time the application for the insurance was made, the applicant was not in sound health; that she knew she was not in sound health but "was suffering or inflicted with a venereal disease, specifically salpingitis, and that her unsound health and the venereal disease contributed to her contingency and her death, or was the cause thereof." Further answering defendant "denies each and every other material allegation in plaintiff's petition contained."
The cause was tried to the court and jury, in the circuit court of Jackson County at Independence, resulting in a verdict and judgment for plaintiff in the sum of $ 500, the face of the policy, $ 50 penalty and $ 250 attorney's fee. A motion for a new trial was in-effectual, and defendant appeals.
The policy which was introduced in evidence provided for the payment of the face thereof to the executor or administrator of the estate of the insured, and further provided:
"No obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health."
The record discloses and the petition so alleges that plaintiff herein is the father of deceased and on May 10, 1930, was duly appointed administrator of the estate of the deceased and, as such, he brings this action.
At the threshold of this case we are confronted with a motion by plaintiff to dismiss the appeal and attacking the sufficiency of defendant's statement of the case, in that it violates the requirements of section 1060, Revised Statutes 1929, and our rule 16. Section 1060 requires that the appellant shall make out and furnish the court with "a clear and concise statement of the case and the points intended to be insisted on in the argument." Our rule 16 provides "the statement . . . shall consist of a clear and concise statement of the case without argument, reference to issues of law or repetition of the testimony of witnesses." It is charged in the motion that defendant's statement violates the statute cited and our rule 16, and asks dismissal of the appeal, as provided by our rule 18. With these rules in mind, we have examined the alleged offending statement, and while it may not be such as would ordinarily be furnished and requires some search of the record, yet it does set out with a sufficient amount of clarity such a statement as to enable us to have a fair understanding of the case without laborious effort and reference to the record. Under these circumstances, we do not feel warranted in applying the drastic action authorized by our rule 18, and the motion to dismiss the appeal is hereby overruled.
Other points are raised in the motion to dismiss, but as these refer to matters properly to be considered in passing on the case on its merits, they will receive attention in due course.
There are nine assignments of error, consisting of a verbatim reproduction of defendant's motion for a new trial. While plaintiff makes much of this fact, we know of no rule of law whereby an appellant may not adopt the points urged in his motion for rehearing, as the basis of his assignment of errors. These nine assignments of error are discussed under three points and authorities.
There is no dispute that the insured, in her application for the insurance, stated she was of sound health at that time. Under the answer, the question at issue is whether, in fact, the insured was in sound health at that time and at the time the policy was issued. It is defendant's contention she was not, and it is urged the trial court erred in refusing certain testimony on that point.
The testimony on behalf of plaintiff on the question of decedent's illness is, that on June 29, 1929, she was in the employ of one Mrs. Hornbuckle; that she was suddenly taken ill and Mrs. Hornbuckle brought her to her sister's home; the following day, she was taken to a hospital in Kansas City, Kansas, and later brought back to the City Hospital in Kansas City, Missouri, where she died on July 12, 1929. Plaintiff testified decedent had not been ill prior to her last illness.
Decedent's sister, Lydia Bell, to whose home she was brought by Mrs. Hornbuckle when she was taken ill, testified decedent had given birth to a child on October 22, 1928; that the child was still alive and was two years of age at the time of the trial; that decedent was not sick previous to her last illness. Mrs. Fay Miller, an employer of decedent in 1926 to 1928, testified decedent was never ill during that period, and never laid off a day. Mrs. Hornbuckle testified decedent had been in her employ from sometime in 1928 until witness and her husband went on a trip that fall, and that decedent came back to work in March, 1929; that decedent was taken ill the last of June, 1929; that prior to that time she was never ill, but was faithful and regular; that she was suddenly taken ill in the afternoon and witness took her to the home of her sister, Mrs. Bell; that she seemed to be in acute pain, as though it might be appendicitis, very acute and sudden.
In support of the allegations of defendant, there was introduced the testimony of Doctors R. C. Loman, William A. Johnson, William A. Hambrick and Percy Turner. Dr. Johnson testified to having called on decedent just prior to her death, and after her death, held an autopsy on her body; that he signed the death certificate, giving the cause thereof as "peritonitis, from rupture of a dermoid cyst." During the direct examination of Dr. Johnson, the following occurred:
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