Macan v. Missouri Mut. Ass'n

• Decision Date: 25 April 1933
• Docket Number: No. 5206.,5206.
• Citation: 60 S.W.2d 402
• Court: Missouri Court of Appeals
• Parties: MACAN v. MISSOURI MUT. ASS'N.

60 S.W.2d 402

MACAN v. MISSOURI MUT. ASS'N.

No. 5206.

Springfield Court of Appeals. Missouri.

April 25, 1933.

Rehearing Denied May 27, 1933.

Appeal from Circuit Court, Greene County; John Schmook, Judge.

Suit by Izadore Macan against the Missouri Mutual Association. From order granting defendant new trial after verdict for plaintiff, plaintiff appeals.

Reversed and remanded, with directions.

Edward E. Naber, of Kansas City, and Williams, Henson & Stone, of Springfield, for appellant.

Harry G. Neale, of Springfield, for respondent.

SMITH, Judge.

This suit was instituted in the circuit court of Greene county, Mo., returnable to the January term, 1932, thereof, being a suit by Izadore Macan, plaintiff, against the Missouri Mutual Association, defendant, to recover $1,000, the face of a certain certificate of policy of insurance No. A-6350, issued by said defendant upon the life of Barbara Soptich, now deceased, in which plaintiff was named as beneficiary, together with interest thereon, the statutory penalty for vexatious delay, and attorney's fees.

The case was tried on the 15th and 16th days of June, 1932, to a jury, and a verdict was rendered in favor of plaintiff and against defendant for $1,000, the face amount of said policy; $154 as interest thereon from the 19th day of October, 1929, to the date of trial; $100 as statutory penalty or damages for defendant's vexatious delay, and $300 as a reasonable attorney's fee.

In due time, defendant filed its motion for new trial, which was on the 22d day of July, 1932, and at the same term of court, sustained, said order sustaining defendant's motion for new trial being bottomed solely and expressly upon the ground that the court erred in "excluding exhibit `c' offered by defendant, being the purported application of deceased for admission to the Sanatorium at Norton, Kansas."

The petition filed by plaintiff is in conventional form, alleging that defendant issued and delivered to Barbara Soptich, in consideration of the prompt payment to it of a fixed and stipulated annual premium of $15.20, its policy and contract of insurance No. A-6350 dated the 13th day of September, 1927, upon the life of said Barbara Soptich, in which plaintiff, Izadore Macan, was named as beneficiary; that the premium payable by said insured on and for said policy should be paid in annual installments of $15.20, no amount greater than said sum being due or payable to defendant on or for said policy; that said insured died in Norton, Kan., on the 19th day of June, 1929, while said policy was in full force and effect; and that all of the premiums due and payable on and for said policy had then been paid to defendant.

That due proof of the death of said insured was promptly furnished to defendant, and acknowledged by it; that both plaintiff and assured fully complied with and performed all of the conditions and stipulations of said policy; and that defendant has denied liability under and upon said policy, which said refusal to pay the benefits due thereunder was without just cause or excuse, and willfully vexatious.

Defendant's answer admitted the issuance of the policy of insurance, upon which the suit was brought, and that plaintiff was named as beneficiary therein, and generally denied each and every other allegation of plaintiff's petition.

The answer further alleges that said defendant was organized and exists under article 3 of chapter 37 (sections 5745-5758), R. S. Mo. 1929 (Mo. St. Ann. c. 37, art. 3, §§ 5745-5758), as an assessment company, and as such is not liable for interest, attorney's fees, or statutory penalty for vexatious delay. While defendant did not admit at any time during the course of the trial that it was liable for the statutory penalty for vexatious delay and attorney's fees, under the facts and circumstances of the instant case, and requested an instruction for a directed verdict on those issues, which was refused, yet the case was tried by both parties upon the theory that the policy in suit was a so-called old line, or stipulated premium policy, being identical with the certificate or policy described in the third count of plaintiff's petition, in the case of Nastav v. Missouri Mutual Association (Mo.App.) 47 S.W.(2d) 166.

The answer further alleges that the insured falsely represented in her application for the policy that she did not then have tuberculosis, and was of sound body, mind, and health; and falsely represented in said application that the beneficiary was her cousin, when in truth and in fact he was not, and therefore had no insurable interest in the life of said Barbara Soptich.

No issue was made upon the trial as to plaintiff's insurable interest, since the case was tried upon the theory that the policy in suit was issued on the stipulated premium plan. Art. 4, c. 37 (sections 5759-5783) R. S. Mo. 1929 (Mo. St. Ann. c. 37, art. 4, §§ 5759-5783).

Defendant's answer also alleged that the policy in suit had been canceled in accordance with section 4 of article 9 of defendant's by-laws, but this issue was likewise abandoned upon the trial of the case, and was withdrawn from the consideration of the jury by plaintiff's instruction 2. No instruction covering it was requested by defendant, and it is not presented upon this appeal.

To defendant's answer, plaintiff filed reply, denying each and every allegation of new matter therein contained.

Plaintiff introduced in evidence the policy in suit, in the face amount of $1,000, dated September 13, 1927. The insured's application for said policy was typewritten in the printed form provided on the third page of the policy. The signature "Barbara Soptich, Applicant," was likewise typewritten at the end of the application form, but the original signature of said applicant and insured does not appear on said policy. The original application, purporting to have been signed by said insured, was not introduced in evidence by defendant.

Mr. Edward E. Naber, one of plaintiff's counsel, after detailing the services performed by the attorneys for plaintiff in the instant case, and stating that the fee arrangement with plaintiff was "that we were to get a reasonable compensation for services rendered and to be rendered," testified that a reasonable attorney's fee for said services would be $350 to $400.

Mr. Courtney W. Hamlin and Mr. Charles L. Chalender, qualified practicing attorneys in Springfield, testified on behalf of plaintiff that the services rendered by plaintiff's counsel in the instant case were reasonably worth $333, or $350 to $400, respectively.

At the close of the evidence, defendant's demurrer to the evidence was overruled, and the case was submitted to the jury under seven instructions, instructions numbered 1, 2, 3, and 4, given at plaintiff's request, and instructions numbered 5, 6, and 7, given at defendant's request.

Instruction 1 told the jury that, if they believed Barbara Soptich on or about September 13, 1927, made application for the policy in suit, in which she designated plaintiff as beneficiary, that said policy was thereafter delivered to said applicant insured, that both said insured and plaintiff beneficiary kept and performed all of the conditions required by said policy, that said insured died on or about June 19, 1929, while said policy was in full force and effect, and that defendant had not paid to plaintiff the benefits due under said policy or any part thereof, then their verdict should be for plaintiff, for the face of said policy, to wit, $1,000. Said instruction further authorized the jury to allow interest on said face amount of $1,000, from October 19, 1929, to the date of trial at the rate of 6 per cent. per annum, and required that said interest should be separately computed and stated in the verdict.

Instruction 2 withdrew all allegations and evidence relating to the alleged cancellation of said policy by defendant on or about February 13, 1929, the date of defendant's letter.

Instruction 3 authorized the jury to allow plaintiff statutory damages and penalty for vexatious refusal to pay the face amount of said policy, if they found said face amount to be due, not to exceed 10 per cent. of said sum of $1,000, and a reasonable attorney's fee, provided they found said refusal to pay was willful, vexatious, and without reasonable cause. This, the jury was instructed, was "a question of good faith on the part of the defendant, under the evidence, as the facts would have appeared to a reasonable and prudent man before the institution of this case."

Instruction 4 placed the burden of proving the issue of misrepresentations by insured in her application for the policy in suit, upon the defendant, and required the jury to find this issue in favor of plaintiff, unless the matter misrepresented, if any, actually contributed to the death of said insured, which was a question to be determined by the jury from all of the evidence.

Instruction 5 required the jury to find for the defendant if they believed that the insured's answer in her application that she did not then have tuberculosis was false and untrue, and that she died of tuberculosis.

Instruction 6 stated that the issues as to vexatious delay and attorney's fees should be found for defendant, if the jury believed that "defendant acted in good faith in resisting the payment of this claim and had reasonable grounds on which to base a belief that the insured in this case had misrepresented her health."

Instruction 7 required the jury to find for defendant if they believed the insured was afflicted with tuberculosis at the time she made application for the policy in suit, and that she died of tuberculosis.

By refused instruction A, defendant sought to withdraw the issues of vexatious delay and attorney's fees, and, by refused instruction B, sought to direct and require the jury to find that the insured died from tuberculosis.

Defendant filed motion for new trial in due time, which was sustained by...