Fowler v. Missouri Mut. Ass'n

• Decision Date: 07 October 1935
• Docket Number: No. 5519.,5519.
• Court: Missouri Court of Appeals
• Parties: FOWLER v. MISSOURI MUT. ASS'N.

86 S.W.2d 946

FOWLER v. MISSOURI MUT. ASS'N.

No. 5519.

Springfield Court of Appeals. Missouri.

October 7, 1935.

Appeal from Circuit Court, Stone County; Robert L. Gideon, Judge.

"Not to be published in State Reports."

Action by Bertha Fowler against the Missouri Mutual Association. Judgment for plaintiff, and defendant appeals.

Affirmed.

Kirk Hawkins and C. W. Hamlin, both of Springfield, for appellant.

Hughey Baker, of Tulsa, Okl., and E. M. Arnold and Haymes & Dickey, all of Springfield, for respondent.

ALLEN, Presiding Judge.

This is an appeal from the circuit court of Stone county, from a judgment against the defendant on a policy of life insurance issued on the life of T. F. Biles, naming Bertha Fowler beneficiary.

The first amended petition, upon which the case was tried, was in conventional form. The petition alleged, among other things, that the defendant is a life insurance company, organized and existing under the laws of Missouri, with its principal offices in Springfield, Mo.

The petition further alleged that on February 15, 1926, in consideration of the application of T. F. Biles, therefor, and of the payment of the initial and subsequent premiums, the defendant issued and delivered its policy of insurance, insuring the life of T. F. Biles, and further agreed that within 90 days after the receipt at the home office of the defendant of satisfactory proof of death, that the defendant would pay to Bertha Fowler, the beneficiary, the sum of money set forth in the policy. That the policy was a graduating policy, increasing in value each month up until December 14, 1932, when the policy reached its maximum value of $1,000. That the beneficiary, Bertha Fowler, was the daughter of the said Biles, and that Biles died on the 14th day of December, 1932, in Stone county, Mo., and that immediate notice of death and proofs of death were furnished to the defendant.

It further alleged the payment of all premiums due on the policy and a compliance with all conditions and agreements contained in the policy, including demand, and that payment had not been made within the period of 90 days following receipt of proof of death, by defendant.

The petition further alleged that on the 3d day of July, 1933, the defendant paid to plaintiff $146.20, but that the defendant refused to pay plaintiff the full amount of the policy; and prayed judgment in the sum of $853.80, together with penalties and attorney's fees for vexatious delay, on the part of the defendant.

The answer filed by the defendant pleads that the defendant was organized and doing business as a life insurance company on the assessment plan, under and by virtue of the provisions of article 3, chapter 37, of the Revised Statutes of Missouri 1929 (sections 5745-5758 [Mo. St. Ann. §§ 5745-5758, pp. 4398-4411]); and that it was so engaged at the time of the issuance of the policy and at all times subsequent thereto.

The answer further alleged that the certificate mentioned in the plaintiff's petition is a reinsurance certificate on the life of Biles, he having been a policyholder in the Interstate Protective Association, a mutual assessment insurance company, which had ceased to do business; and further alleged that the assured, Biles, made a written application both to the Interstate Protective Association and to the defendant, relative to his age.

Defendant further pleaded that, under the law, it could not insure a person above the age of 60 years. It pleads that the assured, Biles, in the application gave his date of birth as March 1, 1875, but that he was much older and was over the age of 60 years when he executed and presented the applications for insurance.

Defendant further pleaded the provisions of the application made to the Interstate Protective Association, which in substance states that the answers and agreements in the application are warranted to be true, and that the application is to be a part of the insurance contract; and again pleads the provisions of the application made to the defendant for the policy of reinsurance, in which application Biles stated that the statements and agreements in his application were literally true, and that the answer, warranties, and statements contained in the application were the basis of the certificate of insurance, and that defendant relied on the statement in the application, as to the age, and that the statements of Biles, regarding his age, were untrue.

Defendant further alleged and pleaded a release, obtained from the plaintiff on the 3d day of July, for the sum of $146.20, pleading that this release was in full satisfaction of all claims under the policy, and that the plaintiff voluntarily accepted this sum in settlement of her claims, as beneficiary.

The reply of the plaintiff put in issue the validity of the release, alleging that it was fraudulently procured by the defendant's investigator, one Mapes, and further pleads that the release was without consideration. The reply also contains a general denial of all of the allegations in the defendant's answer.

The cause was submitted to a jury in the circuit court, which returned a verdict in favor of the plaintiff, in the sum of $853.80, with interest and attorney's fees, in the sum of $285.38.

The defendant filed a motion for new trial, which was overruled by the circuit court, and thereafter, in due time, prosecutes its appeal to this court.

The issuance of the policy, the payment of the premiums and the death of Biles, the assured, were all admitted by the defendant (appellant) at the time of the trial, but the appellant seeks to avoid payment of the policy, because of the fact that it is an assessment company, and that Biles was over the age of 60 years at the time he was insured, and therefore could not be insured by an assessment company, under the law; and further seeks to avoid liability by reason of the alleged compromise effected by its agent or investigator, Mapes, with the beneficiary.

The record is devoid of any evidence as to whether or not the defendant is an assessment or old line company, other than the allegation contained in defendant's answer, except the certificate or policy and certain agreements contained in the application and the payment card, showing the payments of premiums made by the plaintiff.

Bertha Fowler, daughter of the beneficiary, testified that she paid the premiums on the policy, and that her father died December 14, 1932. She further testified that in June, subsequent to her father's death, a Mr. Mapes, representing the defendant, came to her home near Sand Springs, Okl., and stated that he had made an investigation of the facts and found that her father was too old to be insured by the defendant. She further testified that she had no schooling beyond the fifth grade, and no experience in insurance matters. She further testified that Mapes told her that the company could not pay the claim, and that if they did they would all go to the penitentiary. She further testified that he, Mapes, told her that the mother had confirmed the fact that the father was over 60 years of age at the time of the issuance of the policy. That the death certificate showed that her father was over 60 years of age at that time.

On cross-examination she testified that the first time Mapes came to her home, in June, he offered to repay her the premiums paid to the defendant company, but that some point was made as to whether or not she should be repaid the premiums paid to the Interstate Protective Association; and that on the second visit, a month later, he came prepared to pay her all the money she had paid to the defendant and the Interstate Protective Association, which amounted to $146.20. She stated that she accepted this amount and signed a release and surrendered the policy to the defendant.

The testimony of defendant's agent or investigator, Mapes, was to the effect that he made two trips to the home of Mrs. Fowler, about a month apart, and that he did not mislead her in any matter and things, but that, as he put it, "placed all his cards on the table" and finally settled with her for $146.20.

The release, purporting to fully release the defendant, was introduced in evidence.

The office record of the defendant, showing the payments made on the policy, quoting from the evidence, is as follows:

"The endorsements on the card showed that on November 5, 1931, plaintiff paid $12.60 covering a period from November 1, 1931 to May 1, 1932. That she paid $12.60 May 5, 1932, covering a period from May 1, 1932 to November 1, 1932. That on October 21, 1932 she paid $12.60, paying the premiums from November 1, 1932 to May 1, 1933."

Plaintiff's Exhibit B, which was introduced in evidence, which was part of the application for the policy, issued by the defendant company, was as follows: "The Assessment due and payable by me shall be $2.52 and no amount greater than this shall be payable by me on any assessment. Failure by me for a period of more than thirty days after any assessment is due and notice thereof has been given to pay the same shall render my certificate absolutely null and void."

It is not necessary for determination of this cause to quote further from the evidence. It is our opinion there are only two questions involved in the case at bar.

First: Does the record disclose that the defendant was an assessment company, forbidden to issue a policy of insurance on a person over the age of 60 years and exempt from the general provisions of the insurance laws of the state of Missouri, relative to life insurance companies?

Second: Was the release obtained from the beneficiary on July 3d, by Mapes, a valid and binding release?

The petition in this case alleged that the defendant was an insurance corporation, engaged in the life insurance business in the state of Missouri, and organized under the laws of Missouri. It did not specify the nature of defendant's business — that is, whether it was an assessment or...