Longo v. John Hancock Mut. Life Ins. Co.

• Decision Date: 08 July 1941
• Docket Number: No. 25355.,25355.
• Citation: 153 S.W.2d 805
• Parties: LONGO v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: Missouri Court of Appeals

153 S.W.2d 805

LONGO v. JOHN HANCOCK MUT. LIFE INS. CO.

No. 25355.

St. Louis Court of Appeals. Missouri.

July 8, 1941.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by Phillip Longo against the John Hancock Mutual Life Insurance Company on a life policy. From a judgment for plaintiff, the defendant appeals.

Reversed and remanded with directions.

Conforming to mandate of Supreme Court, State ex rel. John Hancock Mutual Life Insurance Company v. Hughes, 152 S.W.2d 132, quashing in part prior opinion of St. Louis Court of Appeals, 142 S.W.2d 871.

Leahy, Walther, Hecker & Ely, of St. Louis, for appellant.

Robert E. Hannegan, Gilbert Weiss, and Martin A. Rosenberg, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff beneficiary upon a policy of insurance issued by defendant upon the life of plaintiff's wife, Josephine Longo.

In its petition, plaintiff prayed judgment for the face amount of the policy with interest, together with a statutory penalty and attorney's fee by way of alleged vexatious refusal to pay.

In its answer, defendant set up that the policy was void by reason of certain alleged false and fraudulent representations which were made by the insured in her application, and also by reason of an alleged breach of the sound health provision of the policy, all with respect to matters material to the risk insured against.

For his reply, plaintiff alleged that no false or fraudulent representations had been made by the insured in her application, but that on the contrary, she had given a truthful answer to each question propounded to her; that defendant's agents had themselves filled out the application for the policy; that if any false answers were written in the application, they had been inserted therein without the knowledge or direction of the insured and contrary to the answers she had actually given; and that defendant, through its said agents, had had full knowledge of the facts with regard to the health of the insured, so that having issued its policy with knowledge of the facts, it was estopped to deny the validity of the policy.

Upon a trial to a jury, a verdict was returned in plaintiff's favor for the aggregate amount of $1,580, comprising items of $1,000, the face amount of the policy; $230 as interest; $100 as a penalty for vexatious delay in payment; and $250 as an attorney's fee. Judgment was rendered in accordance with the verdict; and defendant's appeal to this court has followed in the usual course.

Following the argument and submission of the case in this court, an opinion was handed down affirming the judgment of the circuit court. Longo v. John Hancock Mutual Life Insurance Co., Mo. App., 142 S.W.2d 871. Thereafter certiorari was granted by the Supreme Court to review said decision; and on June 12 1941, the Supreme Court delivered an opinion quashing so much of the opinion of this court as had approved the allowance in the circuit court of damages for vexatious delay...