Kelley v. United Mut. Ins. Co.
| Citation | 149 S.W.2d 905 |
| Decision Date | 17 February 1941 |
| Docket Number | No. 19532.,19532. |
| Parties | HOWARD W. KELLEY, ADMINISTRATOR OF THE ESTATE OF AURILLA B. ERVIN, DECEASED, RESPONDENT, v. UNITED MUTUAL INSURANCE ASSOCIATION, A CORPORATION, APPELLANT. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court of Jackson County. — Hon. Ben Terte, Judge.
AFFIRMED.
Watson, Ess, Groner, Barnett & Whittaker, Douglas Stripp, Morrison, Nugent, Berger, Byers & Johns and Irwin, Bushman & Buchanan for appellant.
(1) Defendant's demurrer at the close of the case should have been given and the court erred in granting plaintiff a new trial. Sheppard v. Travelers Protective Ass'n, 124 S.W. (2d) 528; Wood v. K.C. Home Tel. Co., 223 Mo. 537, 123 S.W. 6; Boydston v. Bank of Camden Point, 141 S.W. (2d) 86; Chadwell v. Reed, 198 Mo. 359, 95 S.W. 227; Fendler v. Roy, 331 Mo. 1083, 58 S.W. (2d) 459; Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W. (2d) 14; Davis v. Howell, 52 S.W. (2d) 423; Kelly v. United Mut. Ins. Ass'n, 112 S.W. (2d) 929; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W. (2d) 1079; Yuronis v. Wells, 322 Mo. 1039, 17 S.W. (2d) 518; Hughes v. Miss. River & Bonne Terre Ry. Co., 309 Mo. 560, 274 S.W. 703; Massman v. K.C. Pub. Serv. Co., 119 S.W. (2d) 833. (a) The release admittedly executed by the beneficiary could not be disaffirmed or avoided without pleading and proof of a tender of the consideration paid therefor. McKenzie v. Donnell, 151 Mo. 431, 461, 52 S.W. 214, 222; Rhoades v. Fuller, 139 Mo. 187, 40 S.W. 760; Doty v. Mumma, 305 Mo. 188, 264 S.W. 656; Wells v. Mutual Benefit Assn., 126 Mo. 638; Dahler v. Meistrell, 224 Mo. App. 815, 24 S.W. (2d) 238. (b) The evidence relating to the claim of insanity was materially different on this trial and was wholly insufficient to prove insanity. Cutler v. Zollinger, 117 Mo. 92, 22 S.W. 895; Powers v. K.C. Pub. Serv. Co., 343 Mo. 432, 66 S.W. (2d) 840; Lee v. Ullery, 140 S.W. (2d) 5; Von de Veld v. Judy, 143 Mo. 348; Chadwell v. Reed, 198 Mo. 359; Winn v. Grier, 217 Mo. 420; Smarr v. Smarr, 6 S.W. (2d) 860; Berkemeier v. Reller, 37 S.W. (2d) 430; Loehr v. Starke, 332 Mo. 131, 56 S.W. (2d) 772; Powers v. K.C. Pub. Serv. Co., 343 Mo. 432, 66 S.W. (2d) 840; Och v. M.K. & T. Ry. Co., 130 Mo. 27, 31 S.W. 962. (c) There was no evidence whatever that defendant's agent knew or had notice of any mental incapacity. See argument. (2) The court erred in sustaining plaintiff's motion for new trial. (a) Instructions D and G were proper. Kelley v. United Mut. Ins. Ass'n, 112 S.W. (2d) 933; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W. (2d) 1079; Hughes v. Miss. River & Bonne Terre Ry. Co., 309 Mo. 560, 274 S.W. 703; Yuronis v. Wells, 332 Mo. 1039, 17 S.W. (2d) 518; Woods v. Washington Fidelity Nat'l Ins. Co., 113 S.W. (2d) 121. (b) Instruction E was proper. Cutler v. Zollinger, 117 Mo. 92, 22 S.W. 895; Townsend v. Boatmen's Nat'l Bank, 340 Mo. 550, 104 S.W. (2d) 657. (c) Instruction F was proper. State v. Clevenger, 156 Mo. 190, 56 S.W. 1078; Murphy v. Tumbrink, 25 S.W. (2d) 133 (not officially reported); Price v. Metropolitan St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Chadwell v. Reed, 198 Mo. 359, 95 S.W. 227; Fendler v. Roy, 331 Mo. 1083, 58 S.W. (2d) 459; Wolfson v. Cohen, 55 S.W. (2d) 677 (not officially reported), (d) Instruction I was proper. See argument. (e) Instruction J was proper. See argument.
Walter J. Gresham for respondent.
(1) The trial court was justified in granting plaintiff a new trial. There was no breach of warranty. Doucolombier v. Thompson, 124 S.W. (2d) 1105; 3 Cooley, Briefs on Ins., p. 1185 (h); Houston v. Ins. Co., 97 S.W. (2d) 856; Ash Grove, etc., Co. v. Surety Co., 225 Mo. App. 712, 39 S.W. (2d) 434; Baker v. D.G. Co., 318 Mo. 969, 2 S.W. (2d) 733; 14 R.C.L. 1071, sec. 249; 4 Couch, Cyc. Ins. Law, pp. 2863, 2870; Bacon, Life and Acc. Ins. (4 Ed.), sec. 254; 3 Joyce, Law of Ins., secs. 1964, 1965; Cooley, Briefs on Ins., pp. 1189 (1), 1900 (c), 1912 (g), 3028 (j); 32 C.J. 1295, sec. 524; 37 C.J. 457, 466; 45 C.J. 77, 83; Note in 43 L.R.A. (N.S.) 431; Woods v. Ins. Co., 50 Mo. 112; Wilkins v. Ins. Co., 57 Iowa, 529, 10 N.W. 916; State v. Allen, 305 Mo. 607, 267 S.W. 379. (2) Defendant's demurrer was properly overruled. Barrett v. Kern, 141 Mo. App. 5; Oil Well Supply Co. v. Wolfe, 127 Mo. 616; State Bank v. Dunn, 325 Mo. 710, 29 S.W. (2d) 79; W.T. Rawleigh v. Kimes, 40 S.W. (2d) 737; Broyles v. Achor, 78 S.W. (2d) 461; Davis v. Smith, 75 Mo. 219; Lynn v. B.M.A., 111 S.W. (2d) 231; Collins v. Trotter, 81 Mo. 275; Bogie v. Nolan, 96 Mo. 85; Rau v. Robertson, 260 S.W. 751; Kingsland v. Iron Co., 29 Mo. App. 538; Girard v. Car Wheel Co., 123 Mo. 358; Hamner v. Edmonds, 327 Mo. 281, 36 S.W. (2d) 929; Von De Veld v. Judy, 143 Mo. 348; Hamburger v. Rinkel, 164 Mo. 398; State v. King, 64 Mo. 591; Koenig v. R. Co., 194 Mo. 564, 92 S.W. 497; 32 C.J. 741. (3) Defendant's instructions were erroneous. Yancey v. Mutual Assn., 77 S.W. (2d) 149; Fowler v. Mutual Assn., 86 S.W. (2d) 946; Enright v. Schaden, 242 S.W. 89; Rau v. Robertson, supra; Smallwood v. Ry. Co., 217 Mo. App. 208, 263 S.W. 550; Bailey v. Bailey, 11 S.W. (2d) 1026; McCune v. Daniels, 251 S.W. 458; Swoboda v. Nowak, 255 S.W. 1079; Collins v. Trotter, 81 Mo. 275; Bogie v. Nolan, 96 Mo. 85; Briggs v. Ewart, 51 Mo. 245; Edmonston v. Henry, 45 Mo. App. 346; State Bank v. Dunn, 325 Mo. 710, 29 S.W. (2d) 79; W.T. Rawleigh v. Kimes, 40 S.W. (2d) 737; Broyles v. Achor, 78 S.W. (2d) 459; Bank v. Equipment Co., 221 Mo. App. 733, 285 S.W. 779; Fendler v. Roy, 331 Mo. 1083, 58 S.W. (2d) 459; Bernard v. Duncan, 38 Mo. App. 170; R. Co. v. Chester, 41 Okla. 369, 138 Pac. 150; Rau v. Robertson, 260 S.W. 751; 18 C.J. 1228; 32 C.J. 613, sec. 82; New Century Dictionary; Webster's International Dictionary; Primmer v. Foundry Co., 299 S.W. 825; Fulton v. Rys. Co., 125 Mo. App. 239; Roach v. Rys. Co., 228 S.W. 520; Choice v. State, 31 Ga. 424; Haney v. Ben. Assn., 34 S.W. (2d) 1046.
This is a suit on four life insurance policies issued by United Mutual Insurance Association, hereinafter referred to as "defendant," upon the life of Buford W. Ervin, deceased, who will be referred to as "insured." Aurilla B. Ervin was the wife of insured and was named as beneficiary in the policies. Insured died on June 19, 1934, and this suit was instituted by Aurilla B. Ervin, but she has since died and the cause was revived in the name of Howard W. Kelley, her administrator, who will be referred to as "plaintiff." The cause was tried to a jury, resulting in a verdict for defendant. Plaintiff's motion for new trial was sustained "because of error in defendant's instructions."
This is the second appeal of this cause to reach us, having previously been tried, resulting in a verdict and judgment for plaintiff, which judgment was, upon appeal to this court, reversed, and the cause was remanded. [Kelley v. United Mut. Ins. Assn., 112 S.W. (2d) 929.]
The pleadings in the instant case are about as they were in the first trial. They are set out at length in the former opinion above cited, and we see no good purpose to be served by again setting them out in detail. Suffice it to say that plaintiff's petition is in five counts, the first four are each conventional in form, declaring upon the policies and pleading requisites of such cause of action. The fifth count of plaintiff's petition seeks to set aside a release in full executed by Aurilla B. Ervin on the ground of mental incompetency, with misrepresentation.
Defendant's answer, as to each of the first four counts, is in conventional form, denying liability on the grounds of misrepresentation by insured in his application for insurance, and further pleads a compromise settlement and release; the answer to the fifth count alleged that the insured made certain false representations in his application for the insurance, and after his death a controversy arose between the defendant and the beneficiary and that said controversy was settled and compromised and a release executed in accordance therewith. The false representations complained of were that the insured had a cancerous condition; that he was diseased and not in good health; and that he had not within two years prior to the making of the application received medical and surgical treatment, when in truth and fact all of those conditions existed at the time he made his application. The plaintiff filed a reply which was a general denial joined with a specific denial that there was any bona fide controversy and that she knew she was accepting the payment in full settlement of her claim, and that there was any consideration for the same, and again alleged that she was mentally unsound at the time and incapable of understanding the nature and effect of the transaction.
At the close of all the evidence, the defendant offered an instruction in the nature of a demurrer which the court overruled, to which ruling the defendant excepted. Plaintiff requested but one instruction, which the court gave, submitting the case to the jury on the theory on which it had been tried, and his theory of the law applicable to the facts in the case. That instruction is as follows:
"The Court instructs the jury that if you find and believe from the evidence that Buford W. Ervin was in good health at the time he took out the certificates mentioned in evidence, and if you find that he was not then afflicted with cancer or other disease which caused or contributed to his death, and if you find that Aurilla B. Ervin was of unsound mind at the time she signed the release introduced in evidence, and if you find that she did not and could not understand the nature and effect of the transaction, and if you find that defendant's representative knew of such incapacity, if any, or that he had such information with respect thereto as would put an ordinarily prudent person to the belief of such incapacity, if any, and if you find that he induced...
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