Liebel v. Metropolitan Life Ins. Co.

• Decision Date: 02 May 1922
• Docket Number: No. 17172.,17172.
• Citation: 241 S.W. 647
• Parties: LIEBEL v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

241 S.W. 647

LIEBEL v. METROPOLITAN LIFE INS. CO.

No. 17172.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Henry Liebel, administrator of the estate of William Higgins, deceased against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Fordyce, Holliday & White, of St. Louis, for appellant.

Joseph Reilly, of St. Louis, for respondent.

BRUERE, C.

This action was commenced on the 29th day of September, 1919, before a justice of the peace by the plaintiff, as administrator of the estate of William Higgins, deceased, to recover on an insurance policy issued by the defendant on the life of the deceased. Plaintiff had judgment in the justice court, from which the defendant appealed to the circuit court, where a trial was had before a jury and a verdict and judgment rendered in favor of plaintiff for $120, penalty $12 and $100 attorney's fee, a total of $232.

The petition contains the usual allegations, and prays judgment for the sum of $120, the amount of the policy, and for a reasonable attorney's fee and damages for vexatious refusal to pay the policy.

No pleading was filed by the defendant. It admitted, however, at the trial, that the plaintiff was the duly qualified administrator of the estate of William Higgins, deceased. Defendant also tendered into court the sum of $4.10, being the amount of premiums paid, $3.40 and 70 cents interest on that sum from the time of the death of insured up to the date of suit, which tender plaintiff refused.

The facts established at the trial, on the part of the plaintiff, are few and uncontradicted. On December 3, 1917, the policy sued on was issued and delivered to the deceased. It insures the life of William F. Higgins in the sum of $240. One-half only of the above sum is payable if death occur within six calendar months from date of policy, and the full amount if death occur thereafter. The deceased died on March 29, 1918. At the time of his death all the premiums due under the policy were paid. On June 5, 1918, the defendant sent the following letter to plaintiff's attorney. The letter was introduced in evidence, and reads thus:

                  "Metropolitan Life Insurance Company
                      "John R. Hegeman, President
                "Claim Division
                    "Edw. O. Wieters, Manager
                    "H. B. Peters, Asst. Manager.
                             "New York City, June 5, 1918.
                

"In re Policy No. 56,137,579—William Higgins.

"Mr. Joseph Reilly, Attorney, S. W. Corner 7th & Chestnut Sts., St. Louis, Mo.—Dear Sir: We have your letter of May 27th, and in reply would advise you that this policy was issued December 3, 1917, and provides that no obligation is assumed by the company prior to that date, nor unless on said date the insured is alive and in sound health.

"Furthermore, that the policy is void if the insured before its date has been attended by a physician for any serious disease or complaint or has had before said date any pulmonary disease or chronic bronchitis or cancer or disease of the heart, liver or kidneys.

"Proofs of death furnished us by the claimant showed the above named was not in sound health when this policy was issued, and had had and had received treatment for a serious disease prior to the date of said policy, in view of which the policy was void, and claim has been rejected, and the only offer of settlement we have to make is a return of the premiums paid.

                    "Yous truly,
                      "[Signed] Edw. O. Wieters, Manager."
                

At the trial plaintiff, over defendant's objection, introduced, for the purpose then stated of showing vexatious refusal to pay the policy, the files in the case in the justice court.

Plaintiff's counsel, for the purpose of showing the extent of the legal services performed by him in the case, testified to the proceedings that took place in the justice court. His testimony was Practically a recital of the matters contained in the files of the case in said court.

There was further evidence to the effect that $100 was a reasonable attorney fee for the services performed in prosecuting this case.

At the close of plaintiff's case defendant offered an instruction in the nature of a demurrer to the evidence, which the court refused. The defendant stood on its demurrer, and offered no evidence.

Defendant seeks a reversal of the judgment herein based on two assignments of error. They are: (1) That the court erred in not sustaining the said demurrer to the evidence; (2) that the court erred in admitting in evidence the justice court files.

Counsel for defendant, in support of the first assignment of error, contends that the case should not have been submitted to the jury for the reason that the plaintiff failed to establish that proofs of death were furnished to defendant, as provided for under the terms of the policy before the proceeds of said policy became due and payable. In this case the defendant in its letter, hereinbefore set out, not only admitted that proofs of death were furnished it, but denied all liability on the policy. Because of this denial it was not necessary to furnish any proofs of death. Liebing v. Insurance Co., 269 Mo. loc. cit. 520, 191 S. W. 250; United Zinc Cos. v. Accident Assurance Corp., 144 Mo. App. loc. cit. 390, 128 S. W. 836; Hollenbeck & Co. v. Insurance Co., 133 Mo. App. 57, 113 S. W. 217; Cullen v. Insurance Co., 126 Mo. App. loc. cit. 418, 104 S. W. 117; Dodge v. New York Life Insurance Co. (Mo. App.) 189 S. W. 609.

Counsel next urges that...