Friedman v. State Mut. Life Assur. Co.
| Decision Date | 14 June 1937 |
| Docket Number | No. 18817.,18817. |
| Citation | 108 S.W.2d 156 |
| Parties | FRIEDMAN v. STATE MUT. LIFE ASSUR. CO. OF WORCESTER, MASS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Ben Terte, Judge.
"Not to be reported in State Reports."
Action by Sarah Friedman against the State Mutual Life Assurance Company of Worcester, Mass. From a judgment for plaintiff, defendant appeals.
Affirmed.
Lathrop, Crane, Reynolds, Sawyer & Mersereau, Richard S. Righter, Dean Wood, and Jesse L. Childers, all of Kansas City, for appellant.
Richard P. Brous and M. L. Friedman, both of Kansas City, for respondent.
This is an action at law in three counts for the recovery of an alleged balance due on three insurance policies on the life of Jacob Friedman and for penalties and attorney's fees for vexatious refusal to pay. The defendant is a corporation, duly organized by virtue of law and engaged in the business of life insurance, which it is authorized to transact in this state.
The cause was tried before the court without a jury, a jury having been waived, and resulted in a judgment for the plaintiff in the sum of $1,397.36 (including interest, damages, and attorney's fees), from which judgment, after unsuccessful motions for new trial and in arrest, the defendant appeals.
The first count of the plaintiff's petition alleges that she is the beneficiary under a life insurance policy issued by the defendant to Jacob Friedman for $2,500; that Friedman died October 25, 1933, while the policy was in force; and that the defendant paid her the face of the policy after wrongfully deducting therefrom the sum of $197, which sum it vexatiously refuses to pay. The second and third counts are like the first, except that they allege that the defendant wrongfully deducted from the policies sued upon in said counts the sum of $411 each. Attorney's fees and penalties are sought to be recovered for vexatious refusal to pay, in each count.
The amended answer is that the defendant had fully paid the plaintiff (the beneficiary, Sarah Friedman) $11,481 in full satisfaction and discharge of the defendant's obligation and liability upon the three policies and of every right, claim, interest, and demand under each; that the beneficiary (Sarah Friedman) accepted such sum in full satisfaction and discharge of each policy; that the defendant was thereby fully and finally released of all obligations under said policies; that, upon such payment, the said policies were surrendered to the defendant to be canceled; and that said policies are void and are of no effect.
The plaintiff's reply to the defendant's amended answer, in addition to a general denial, is that, when said sum was so paid to the beneficiary, no bona fide dispute or controversy existed between the plaintiff and the defendant concerning the amount due on said policies; that the sum due was liquidated by the express terms of the policies; that, under the laws of Missouri, the amount due exceeded the sum paid the plaintiff by the defendant in a sum equal to the aggregate amounts deducted by the defendant; that the alleged satisfaction and discharge of the defendant's obligation was wholly without consideration and was not binding on the plaintiff.
The facts in the record tend to show that, on January 20, 1912, Jacob Friedman of Kansas City, Mo., made written application to the defendant for a policy of life insurance in the sum of $2,500; that the defendant, on said application, issued and delivered to the said Jacob Friedman its policy of insurance in that sum; that, in said application, Jacob Friedman stated the date of his birth to be September 15, 1870; that again, on February 11, 1920, the said Jacob Friedman made written application to the defendant for two additional policies of insurance on his life in the sum of $5,000 each; that the defendant issued to him its two certain policies for $5,000 each; that, in said application for said policies, the said Friedman stated the date of his birth to be September 15, 1870; that, incorporated in each of the three said policies, the following provision appears:
It appears that the plaintiff herein, Sarah Friedman, was designated as beneficiary in each of said policies.
It appears stipulated that each of said policies is a Missouri contract and is to be construed and governed by the laws of the state of Missouri; that Jacob Friedman died on October 25, 1933; that he had duly complied with all of the conditions and provisions of said policies required of him to be performed; that each of said policies was in full force at the time of the death of said Friedman, subject to the claim of the defendant for adjustment of the amount to be paid under the same with respect to the alleged misstatement of his age in his application therefor; that the plaintiff furnished proofs of death of the insured and complied with all of the conditions and provisions in said policies required to be complied with by her; that, at the time of the death of the said Jacob Friedman, the aggregate amounts of the faces of said policies, plus accumulations and dividends, amounted to $14,902.23; that thereafter and prior to the payment by the defendant to the plaintiff herein of the proceeds of said policies, the defendant obtained information indicating to it that the insured was born at an earlier date than that stated in his applications and that the insured had given various other dates on different occasions to other parties as the date of his birth and that all of said dates so given are earlier in point of time than the date given in his applications for the policies in question; that, subsequently, the defendant refused to pay the face amounts of said policies, on the ground that the insured had misstated his age in his applications for the policies, and claimed that, by reason thereof, it was entitled to an adjustment of the face amounts of said policies in accordance with the provision in said policies contained; that the plaintiff thereupon insisted that the defendant was obligated to pay the full face amount of each of the said policies and was not entitled to any adjustment thereof; that the defendant thereupon stated to the plaintiff that it would be willing to pay an amount representing the proceeds of said policies calculated on the amount of insurance to which the insured would have been entitled for the premiums paid if the date of his birth had been February 15, 1869 (the sum of $11,481), plus the accumulated dividends, making the total sum of $13,883.23; and that the defendant tendered said sum to the plaintiff and the plaintiff accepted said sum and surrendered the said policies to the defendant and the defendant accepted and canceled the same; that, on April 20, 1935, the plaintiff, by letter, demanded of the defendant the payment to her of the difference between the face amounts of the policies sued on plus accumulations and dividends and the sum of $13,883.23 (which had been previously paid to her as stated); and that, the defendant having refused to pay said difference, this suit was instituted.
The defendant offered in evidence, over the objection of the plaintiff, the certificate of the State Registrar of the Bureau of Vital Statistics, giving cerebral embolism as the principal cause of the death of the insured and chronic endocardial degeneration as the contributing cause. There was evidence by Dr. Edward P. Heller, testifying in behalf of the defendant, that such diseases are recognized as incident to old age. The record does not show that the plaintiff, upon the receipt of the sum of $13,883.23 insurance paid her by the defendant, executed any release to the defendant of further obligations under the policies sued on or that she was requested by the defendant so to do. There is other evidence in the record tending to show the circumstances leading to the payment made to the plaintiff by the defendant on said policies, which it is unnecessary at this point to set out. If occasion requires in the course of this opinion, it will be more fully set out.
The policies sued on were introduced in evidence by the plaintiff on the trial.
At the conclusion of the plaintiff's evidence, the defendant requested instructions in the nature of demurrers to the plaintiff's evidence, which were by the court refused. Again, at the close of all of the evidence, it renewed its request for such instructions; and such instructions were again refused.
Thereupon, both the plaintiff and the defendant made request of the court for findings of fact by it; and the court gave findings of fact designated P-1, P-2, and P-3, requested by the plaintiff, together with declaration of law P-1, requested by her, and refused findings of fact and declarations of law lettered A, B, C, and D, requested by the defendant.
Opinion.The defendant upon this appeal makes numerous assignments of error upon the action of the trial court, unnecessary to be set out.
1. Under the policies sued on, the plaintiff's claims were liquidated; and the exact sums due her were fixed by the express terms of such policies. The petition proceeds on the theory that, on the death of the insured and proof thereof made to the defendant in accordance with the terms of the policies, the whole amounts on the faces of the same, agreed to be paid by the defendant, together with the accumulated dividends upon each, became payable to the plaintiff as the beneficiary named in the said policies; that she was entitled to demand and receive such; and that the defendant was obligated to pay such.
The amended answer is a general denial...
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