Hawkins v. Wash. Fid. Nat. Ins. Co., 22975.

• Decision Date: 05 February 1935
• Docket Number: No. 22975.,22975.
• Citation: 78 S.W.2d 543
• Parties: EFFIE HAWKINS, RESPONDENT, v. WASHINGTON FIDELITY NATIONAL INSURANCE COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

78 S.W.2d 543

EFFIE HAWKINS, RESPONDENT, v. WASHINGTON FIDELITY NATIONAL INSURANCE COMPANY, A CORPORATION, APPELLANT.

No. 22975.

St. Louis Court of Appeals. Missouri.

Opinion filed February 5, 1935.

Appeal from Circuit Court of the City of St. Louis. — Hon. Granville Hogan, Judge.

AFFIRMED (upon condition of remittitur), OTHERWISE REVERSED.

Martin Farrow for appellant.

(1) The court erred in refusing to give defendant's instructions. Because the release and release draft concluded insured and plaintiff, as matter of law, or, if not, their effect became a fact issue for the jury. State ex rel. Commonwealth Cas. Co. v. Cox (Mo.), 14 S.W. (2d) 600; Putnam v. Boyer, 173 Mo. App. 394, 158 S.W. 861; Laxton v. Retail Hdw. Mut. Fire Ins. Co., 226 Mo. App. 954, 48 S.W. (2d) 144; Zinke v. K. of M. of W., 275 Mo. 660, 205 S.W. 1; McCormick v. City of St. Louis, 166 Mo. 315, 65 S.W. 1038; Owens v. Washington Fid. Nat. Ins. Co. (Mo. App.), 64 S.W. (2d) 293; Gilmore v. Ozark Mut. Assn. (Mo. App.), 21 S.W. (2d) 633; Zeilman v. Ins. Assn., 224 Mo. App. 145, 22 S.W. (2d) 88, 92, and cases cited; Dyrssen v. Union El. L. & P. Co., 317 Mo. 221, 295 S.W. 116; Conklin v. R. Co. (Mo.), 55 S.W. (2d) 306; Dougherty v. Ins. Co., 226 Mo. App. 570, 44 S.W. (2d) 206, 216. (2) Because, even assuming for argument that the releases were ineffective, the evidence showed as matter of law, or if not raised a fact-issue on, the lapse of the policy and its being out of benefit when insured died. Ashbrook v. Ins. Co., 94 Mo. 72, 6 S.W. 462; Darby v. Ins. Co., 293 Mo. 1, 239 S.W. 68, 72, and citations; Pope v. Ins. Co., 192 Mo. App. 383, 181 S.W. 1047, 1050, and cases there cited; Weed v. Ins. Co. (Mo. App.), 24 S.W. (2d) 653; Owens v. Ins. Co. (Mo. App.), 64 S.W. (2d) 293. (3) Because the evidence did not warrant the submission of the issue of vexatious refusal. Sec. 5929, R.S. 1929; Non-Royalty Shoe Co. v. Ins. Co., 277 Mo. 399, 422, 210 S.W. 37; Kusnetzky v. Security Ins. Co. (Mo.), 281 S.W. 47, 52; State ex rel., etc. v. Fid. & Dep. Co., 317 Mo. 1078, 298 S.W. 83, 91; Cooper v. Nat. Life Ins. Co., 212 Mo. App. 266, 253 S.W. 465, 469; Deskin v. Ins. Corp., 221 Mo. App. 1151, 298 S.W. 103, 107, and cases there cited; Zeilman v. Ins. Assn., 224 Mo. App. 145, 22 S.W. (2d) 88. (4) The court erred in giving plaintiff's instruction number two, because, as to penalty, it does not conform to the statute, which should be strictly construed. Sec. 5929, R.S. Mo. 1929; Non-Royalty Shoe Co. v. Ins. Co., 277 Mo. 399, 422, 210 S.W. 37, 42; City of Aurora v. Ins. Co., 180 Mo. App. 263, 165 S.W. 357, 361. (5) The court erred in refusing to give defendant's instructions D, E and G and in giving plaintiffs' instruction number one. Because the evidence showed as matter of law, or if not, raised an issue of fact on, insured's abandonment of her rights under the policy. McGeehan v. Mutual Life Ins. Co., 131 Mo. App. 417, 111 S.W. 604. (6) The court erred in permitting plaintiff to introduce evidence that the trial before the justice of the peace was "without a contest." Evans v. Town of Trenton, 112 Mo. 390, 20 S.W. 614; Alcorn v. R. Co. (Mo.), 14 S.W. 943; Hecke v. Dunham (Mo. App.), 192 S.W. 120; McCall v. Atchley (Mo. App.), 194 S.W. 714; Sexton v. Lockwood (Mo. App.), 207 S.W. 856.

John P. Griffin for respondent.

(1) The release claimed to have been procured by the defendant's agents from the insured, even though valid, was only for two weeks' sick benefits and, therefore, has no effect on this suit for the death benefit in the policy as they are separate matters. Thee v. Wabash Ry. Co., 208 Mo. App. 200, l.c. 204; Bigbee v. Coombs, 64 Mo. 529; Och v. M., K. & T. Ry. Co., 130 Mo. 27, l.c. 72. (2) Evidence admissible for any purpose, even though inadmissible for others, is admissible and, therefore, the testimony of plaintiff's counsel as to the nature of the trial "without a contest" in the justice court was correct in showing the nature of the service rendered in the handling of the case. Cazzell v. Schofield, 319 Mo. 1169, 8 S.W. (2d) 580; Courter v. Mercantile Co., 299 S.W. 622. (3) The defendant refused the premiums and attempted to cancel the policy as a "bad risk" and its attempt to use the release for the two weeks' sick benefits in discharge of the entire claim and its acceptance and retention of a premium after the alleged release was procured shows that its conduct with reference to this claim was highly vexatious, therefore, the court properly submitted to the jury the question of the defendant's vexatious refusal to pay. Streeter v. Washington Fidelity National Ins. Co., 68 S.W. (2d) 889, l.c. 893. (4) The death benefit of the policy is only $87.50, therefore, the point made on plaintiff's Instruction 2 is covered by the Maximum de minimus non curat lex. Hickey v. Metropolitan Life Ins. Co. (Mo. App.), 270 S.W. 388, l.c. 389.

McCULLEN, J.

This is a suit to recover the death benefit provided for in a policy of insurance on the life of Etta Shaw. Respondent, plaintiff below, was named in the policy as beneficiary to be paid $87.50 upon the death of the insured. The action was instituted before a justice of the peace. On appeal to the circuit court a trial before the court and a jury resulted in a judgment for plaintiff against defendant for the principal sum of $87.50 with $7.88 interest, $8.75 penalty and $75 attorney's fee making a total of $179.13. Defendant appeals.

It appears that a policy was issued January 25, 1926, and was lost, but defendant issued to the insured in lieu thereof a certificate certifying to the number of the policy, the date thereof, the amount of insurance, the name of the insured, and the name of the beneficiary.

Plaintiff testified that the insured was her sister; that the insured died on March 12, 1931; that in June, 1930, she obtained from the insured at her residence in St. Louis the certificate introduced in evidence; that the insured at that time was confined to her bed by sickness, and was under the care of a doctor. She further testified that the insured died of that illness; that as beneficiary, she made demand on defendant, through her attorney, for payment of the face amount of the policy, but defendant refused to pay.

It appears that the original policy was issued by the Washington Life & Accident Insurance Company whose policies were thereafter assumed by the defendant company. By means of exhibits introduced in evidence by defendant in connection with the testimony of H.S. Anchell, manager of its claim department, it was shown that the original beneficiary named in the policy was Joe Shaw, and that on March 31, 1930, upon an application made by the insured, which was signed by her mark, the name of the beneficiary was changed to Effie Hawkins, plaintiff in this case. The change of beneficiary was endorsed on the back of the certificate which was issued in lieu of the lost policy.

Defendant's witness Anchell testified that he had worked for the Washington Life & Accident Insurance Company and knew what forms of policies were issued by that company. He identified a form of policy, which was introduced in evidence as defendant's Exhibit 5, as being the specific form that was issued by the above named company on the application of the insured, and testified that all industrial policies issued by that company in 1926, on applications made at the time the application of the insured was made, contained conditions respecting indemnity for confinement to bed for illness, and forfeiture for arrears in payments of premiums which were the same as those appearing in defendant's said Exhibit 5.

For convenience, we shall hereafter refer to defendant's Exhibit 5 as the policy.

The policy provided for weekly payments of the premium, which became due on Monday of each week. It was also provided therein that a policyholder becoming in arrears more than four Mondays "forfeits all he or she may have paid to the company."

Other parts of the policy, with which we are concerned in this case, provided as follows:

"5th. Weekly benefits for sickness will only be paid for each period of seven consecutive days that the insured is by reason of illness necessarily confined to bed.

"7th. The insured will be entitled to sick or accident benefits, subject to the conditions of the policy, provided the premium is not in arrears for a period exceeding two weeks. The subsequent payment of such arrears shall not entitle the insured to benefits for sickness or disability beginning or occurring during the period of such arrears.

"8th. That policyholders more than four Mondays in arrears shall forfeit all claims on this company, ..."

"19th. Consent of the beneficiary shall not be requisite to surrender of this policy, or to change of beneficiary."

The evidence shows that Etta Shaw, the insured, became ill and submitted to defendant claims for sick benefits on May 4th, 16th, 20th, 26th, June 3rd and June 12th in the year 1930; that the claim dated May 4th was paid by defendant, but up to June 17, 1930, the remaining five claims had not been paid. On the last named date defendant paid to the insured the sum of $14, which was equivalent to two weeks sick benefits.

On the same date the insured executed and delivered to Henry Appt, defendant's representative, a release as follows:

                             "Receipt for Settlement in Full
                "$14.00                  District St. Louis
                                        "Debit No. 5 Folio ____
                

"Received this 17 day of June, 1930, of the Washington Fidelity National Insurance Company, the sum of Fourteen Dollars, being full payment and compromise on policy number 395890 issued to Etta Shaw. Said policy was rendered void by reason of full settlement for this disability rheumatism & gastritis & neuritis and is hereby surrendered. The said sum is voluntarily accepted in full settlement of any and all obligations thereunder and I hereby release any and all claims that I, my heirs, executors, administrators,...