Lynn v. Business Men's Assur. Co. of America

• Decision Date: 18 March 1938
• Docket Number: No. 18845.,18845.
• Citation: 111 S.W.2d 231
• Parties: MARY AGNES LYNN, RESPONDENT, v. BUSINESS MEN'S ASSURANCE CO. OF AMERICA, APPELLANT.
• Court: Missouri Court of Appeals

111 S.W.2d 231

MARY AGNES LYNN, RESPONDENT, v. BUSINESS MEN'S ASSURANCE CO. OF AMERICA, APPELLANT.

No. 18845.

Kansas City Court of Appeals. Missouri.

March 18, 1938.

Appeal from the Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.

AFFIRMED.

Earl J. Boughan and Dwight Roberts for respondent.

Harzfeld, Beach, Steeper & Gordon for appellant.

CAMPBELL, C.

The defendant on October 16, 1934, issued to George Lynn, hereinafter called the insured, a contract of insurance in which it was provided that if the insured's death were caused by bodily injuries effected directly and independently of all other causes, through accidental means, it would pay to plaintiff, wife of the insured, the sum of $5000. The insured died on March 4, 1935, from the effects of a gunshot wound inflicted by James Gonce. The defendant when informed by plaintiff of the death of insured denied liability on the ground that death was not due to accident.

On April 11, 1935, the plaintiff accepted the sum of $2700, paid to her by the defendant, and executed a release in which it was stated that the sum so received was in full settlement of her claim under the policy. Thereafter, she brought this suit to recover the balance alleged to be due under the terms of the insurance contract, obtained a verdict and judgment in the sum of $2681.80, of which $138 was interest and $243.80 was damages. The defendant has appealed.

The answer was a general denial followed by allegations to the effect that the insured made misrepresentations in his application for the policy concerning his occupation, in this, that insured represented that he was the "traveling representative, Ford Motor Company" and that his duties were "calling on dealers, sales promotion;" that after the issuance of the policy insured changed his occupation from that of representative of the Ford Motor Company to the occupation of gambling and operating gambling devices and games in Jackson County, Missouri, and that no notice of such change of occupation was given to the defendant; that on April 11, 1935, it fully settled plaintiff's claim, received a release from plaintiff, and that insured at the time of his death was engaged in gambling with other men, and that his death "grew out of and arose" from gambling operations.

The evidence on behalf of the plaintiff shows that the insured was an employee of the Ford Motor Company in Jackson County, Missouri for some fourteen years prior to his death; that he never drank except an "occasional beer," did not gamble professionally or carry firearms and that his reputation was good; that in the early part of 1935 he became the Ford Motor Company's dealer at Salina, Kansas, moved from his home in Independence, Missouri to Salina and was not in Jackson County, Missouri from that time until March 2, 1935, at which time plaintiff and the insured went from Salina to the home of plaintiff's parents near Independence, where insured stayed until the morning of the next day. When insured moved to Salina, he rented a dwelling house to James Gonce. During the daytime of March 3, insured searched for Gonce for the purpose of collecting rent which the latter had neglected to pay. Failing to find Gonce during the day, the search was resumed in the evening. Plaintiff, upon being advised to do so, went to a sanitarium about 1:30 o'clock A.M. March 4, where she found the insured suffering from a gunshot wound. The wound caused the death of insured some six hours later. The bullet which took the life of the insured struck the left side of his chest and ranged downward.

The evidence for the plaintiff further shows that about 9:30 o'clock on the morning of April 11, 1935, the defendant's adjuster. Weaverling, and Ross Richards, adjuster for the American Central Life Insurance Company, which had issued a life policy to the insured in the amount of $5000, went to the home of plaintiff for the purpose of adjusting plaintiff's claim on both policies. According to the plaintiff, Richards on this occasion said to her that he did not owe her anything except $125 or $130, return of premium, and Weaverling said to her that his company did not owe her a cent because their investigation disclosed that the death of insured was not due to accident; that the adjusters stayed at her home until about 11:30 o'clock in the forenoon, urged her to settle and each explained that they didn't owe her anything; that because of the statements and conduct of the adjusters she was grief stricken and left the room; that at that time a neighbor, Mrs. Gold, was present and suggested to the adjusters that they should pay the mortgage on plaintiff's home; that one of the adjusters offered to ascertain the amount of the mortgage; that during all this time the adjusters kept urging her to settle and that she refused to do so; that when the adjusters were leaving her home, Richards told her not to consult a lawyer and Weaverling said, "That's right, Mrs. Lynn, don't consult with any lawyer or we will have you arrested" for making "false claim;" that the adjusters returned to her home about one o'clock, again urged her to settle and made her an offer in a lump sum of $2000 in payment of the claims on both of the policies; that the next offer was $4000, the next $4750, the next $5750 and the next $6750, which last offer she accepted; that until she accepted that offer nothing had been said concerning the amount either company would pay. When plaintiff accepted the amount stated, Weaverling issued a check to her in the sum of $2750 and she executed a release in which it was recited that the payment of that amount was in full settlement of her claim against the defendant, and at the same time Richards paid to plaintiff the sum of $4050 in settlement of the claim on the life policy; that when the adjusters made the offer of $6750, they "had on their coats and hats and they were going, and that was the last offer they were going to make, I could take it or leave it, and they were walking out and that is when they told me I could hire lawyers and `what the lawyers didn't get the courts would get;'" that during the negotiations Weaverling said something about the insured being a gambler, had misrepresented his occupation when he applied for the insurance and for that reason the policy was not in force; and that she believed the adjusters would carry out their threats, believed their representations and was induced thereby to make the settlement.

The defendant's witness, Brady, who was present at the time of the settlement, testified that he advised plaintiff not to accept the settlement, and that the adjusters did not threaten plaintiff. Weaverling was the defendant's witness. He testified that prior to April 11 he investigated the cause of the death of the insured, talked with prosecuting attorneys at Independence and with the attorneys for Gonce; that he submitted the facts which he found to the general counsel of the company and was told that the defendant could not recognize liability under the policy; that he and Richards went to plaintiff's home on the morning of April 11, and Richards told plaintiff "that their position was that a refund of premium was all that that company owed Mrs. Lynn because of the fact that the policy had been secured by misrepresentation;" that he said to plaintiff that the defendant had refused "to pay the claim on the ground that their policy was an accident policy, and Mr. Lynn's death was not due to accidental means;" that he pointed out that their investigation indicated that Mr. Lynn was a rather heavy drinker, a gambler, and had operated gambling concessions in some of the clubs in and around Independence; that he and Richards agreed on a lump sum offer of $4000 to dispose of both claims and that he submitted the offer to plaintiff; that in response to the offer plaintiff offered to settle the claims for $7500; that after further discussion, plaintiff said she would accept $5750, and that he and Richards agreed to pay that amount; that thereupon he prepared a release which was signed by plaintiff, and gave her check for $2700 and that Richards gave plaintiff check for $4050. The witness further testified that "a gambler or a man engaged in gambling" is uninsurable and would not be accepted by his company; that the policy contained a provision as follows:

"This policy includes the indorsements and attached papers, if any, and contains the entire contract for insurance except as it may be modified by the Company's classification of risks and premium rates in the event that the insured is injured after having changed his occupation to one classified by the Company as more hazardous than that stated in the policy, or while he is doing any act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation, in which event the Company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate, but within the limits so fixed by the Company for such more hazardous occupation."

That under that provision, if the insured's death were caused by accident, the amount payable was $100; denied making any threats; denied that he said, "what the lawyers didn't get the courts would get;" stated that he said to plaintiff "this was a very questionable claim, and if she ever got to a lawyer, he probably would take it on a contingent basis and even though she won her suit she would not be as well off as a good settlement;" that after the settlements were made he told plaintiff if she were asked what kind of settlement was made, to say that it was a "satisfactory settlement" and not to state the amount received by her; that he secured and read written statements evidently taken by the sheriff soon after the shooting; that he read the original statement of J.W. Fleener and communicated the facts stated therein to the defendant. The statement...