Kettlegardes v. Prudential Ins. Co. of America

• Decision Date: 07 December 1943
• Docket Number: No. 26490.,26490.
• Citation: 175 S.W.2d 917
• Parties: KETTLEGARDES v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Missouri Court of Appeals

175 S.W.2d 917

KETTLEGARDES v. PRUDENTIAL INS. CO. OF AMERICA.

No. 26490.

St. Louis Court of Appeals. Missouri.

December 7, 1943.

Rehearing Denied December 28, 1943.

Appeal from St. Louis, Circuit Court; Robert L. Aronson, Judge.

"Not to be reported in State Reports."

Action by Henry Kettlegardes against the Prudential Insurance Company of America on a policy of life insurance. From a judgment for plaintiff for $486.95, including interest, the defendant appeals.

Judgment affirmed.

Fordyce, White, Mayne, Williams & Hartman and R. E. LaDriere, all of St. Louis, for appellant.

Paul P. Hoegen, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action on a policy of insurance for $462 on the life of Katherine Kettlegardes. The policy is dated August 4, 1941. Plaintiff, the insured's husband, is the beneficiary in the policy. The insured died on February 28, 1942. This action was commenced on June 11, 1942.

The trial, with a jury, resulted in a verdict in favor of plaintiff for $486.95, including interest. Judgment was given accordingly, and defendant appeals.

Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence.

The application for the policy is dated the same as the policy, but the policy was delivered some time after the signing and delivery of the application by insured. The policy provides that the policy, together with the application, contains and constitutes the entire contract between the parties, and that all statements made in the application shall in the absence of fraud be deemed representations and not warranties.

A copy of the application is inserted in the body of the policy. The application contains the following questions and answers:

"Does any physical or mental defect or vision impairment exist? No.

"What is present condition of health? Good.

"Has person proposed ever had apoplexy, asthma, cancer, convulsions, diabetes, disease of gall-bladder or liver or kidneys or heart, fits, gall-stones, habitual cough, influenza, insanity, paralysis, rheumatism, spitting of blood, syphilis, tuberculosis, tumor, ulcers, operation or injury? No.

"Has person proposed been treated by a doctor or at a dispensary within three years or ever been confined to a hospital or sanitarium for any reason? At home December 19, 1938, pneumonia fully recovered."

Then follows this clause: "I hereby declare that all statements and all answers to the above questions are complete and true, and I agree that the foregoing together with this declaration shall constitute an application for insurance."

The application also contains certain contractual provisions not germane to the controversy with which we are here concerned.

The provisions of the policy are varied and voluminous, and some of them, particularly the questions in the copy of the application as contained in the policy, are in such small type as to be hardly legible.

The proofs of death furnished by plaintiff consist of separate statements by plaintiff and insured's physician. Plaintiff stated that the cause of death was cerebral hemorrhage. The physician stated that the cause of death was chronic myocarditis, and that in his opinion the insured had suffered from this disease for several years.

There were in the application altogether twenty-nine questions answered. The answers were written in by defendant's representatives, Elmer J. Etling and Richard Rhodius, who solicited the insurance at insured's home. Mr. Etling was defendant's soliciting agent, and Mr. Rhodius was its assistant superintendent. The insured did not read the application before signing it. She was not asked to read it, nor given an opportunity to do so. Mr. Etling, as defendant's agent, sold insurance, collected premiums, and delivered policies. He had been so employed for many years. Mr. Rhodius, in addition to performing his other duties as assistant superintendent, supervised and assisted the agents in soliciting and selling insurance. The insured had carried policies of insurance issued by defendant for many years prior to the issuance of the policy in suit. These prior policies had been turned in and the cash value taken thereon. Mr. Etling and Mr. Rhodius represented defendant in the cashing of these policies.

The evidence for the plaintiff shows that the insured had suffered with a heart ailment for many years prior to the signing of the application for the policy in suit, and that the defendant's representatives were informed of this prior to and at the time of the preparation and signing of the application; that she mentioned this ailment to them at the time of the preparation and signing of the application, and that defendant's representatives wrote in false answers to questions respecting her state of health without her knowledge.

Plaintiff testified that he was present at the time Mr. Etling solicited his wife for insurance, and that she said to Mr. Etling, "You cannot insure me, you told me when you cash surrendered the other policies that I could not replace them due to my heart condition"; that Mr. Rhodius, who was present at the time in conjunction with Mr. Etling, said that everybody had some defects, and if they could not insure anybody but those who did not have anything wrong with them at all there wouldn't be very much insurance; that that was the sum and substance of what was said; that the parties were at the kitchen table when the application was being prepared; that both Mr. Etling and Mr. Rhodius participated in preparing the application; that they took the application and passed it over to his wife and she signed it; that he did not see the application after his wife signed it, but saw it when they were preparing it, and saw her sign it; that he did not see the answers put down but saw that they were writing something in the application which was not visible to him or his wife; that there was no such question asked his wife as what was the condition of her health; that the complete discussion concerning her health was previous to that and then they filled out the application and she just signed it; that he did not see what the answers were; that the policy was delivered about a week after the application was signed.

Elmer J. Etling testified, for defendant, that the application was written and completed in the presence of himself and assistant superintendent Rhodius; that he and Mr. Rhodius and Mrs. Kettlegardes were present at the time, and nobody else; that the three of them were seated at the kitchen table; that part of the answers were completed by him and part by Mr. Rhodius; that at the time the application was filled out he did not have any information at all that Mrs. Kettlegardes was suffering from any illness other than the pneumonia she had in 1938 that ...