Magnuson v. Continental Casualty Co.

• Decision Date: 01 April 1907
• Citation: 125 Mo. App. 206,101 S.W. 1125
• Parties: MAGNUSON v. CONTINENTAL CASUALTY CO.
• Court: Missouri Court of Appeals

101 S.W. 1125

125 Mo. A. 206

MAGNUSON v. CONTINENTAL CASUALTY CO.

Kansas City Court of Appeals. Missouri.

April 1, 1907.

Rehearing Denied May 6, 1907.

1. JURY — RIGHT TO JURY TRIAL — RELEASE — VACATION — FRAUD.

Rev. St. 1899, § 654 [Ann. St. 1906, p. 670], provides that, whenever a release of a cause of action sued on shall be pleaded in bar to plaintiff's cause of action, it shall be permissible in the reply to allege any facts showing that the release was fraudulently obtained, and the issue thus raised shall be submitted to the jury. Held, that such section did not authorize trial by jury on an issue of fraud inducing plaintiff to execute a release, which she sought to have set aside on that ground as a part of her cause of action on her original claim.

2. RELEASE — EXECUTION — FRAUD.

After a loss on an accident policy, the insurer's agent claimed that the insurer was only liable for one-tenth of the full benefit of the policy, in any event, because the insured's death had been caused, not directly by the accident, but by tetanus superinduced by infection, and this amount he offered to pay for a release, but advised complainant not to take his word, but to consult a lawyer and take time to consider if she so desired. Complainant talked the matter over with her husband and son, and then accepted the proposition and executed her release. Held, that the release was not fraudulently obtained.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Annie Magnuson against the Continental Casualty Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. C. Rosenberger, Kersey Coates Reed, and Manton Maverick, for appellant. Jamison, Elliott & Ostergard, for respondent.

BROADDUS, P. J.

The plaintiff is the beneficiary in an accident policy issued to her son, Edward Magnuson. On the 4th of July, 1903, the said Edward, the insured, was celebrating the day with a pistol and blank cartridges. By accident the pistol was discharged, and the wad of the cartridge entered the palm of his left hand, inflicting a punctured wound. He went at once to a neighboring drug store, where a drug clerk, who was a medical student, probed the wound, but did not find the wad. On the following day he went to Dr. W. H. Leonard, who probed the wound also, but did not find the wad. The wad, which was of the diameter of a lead pencil, remained in the wound for 12 days, when it was removed by Dr. Kestler. In the interim the wound had become aggravated, and symptoms of tetanus appeared, and on the 23d of July he died. Plaintiff's suit is to recover the amount of the benefit provided for, and in addition there is a count in the petition setting forth that A. A. Smith, an agent of the defendant, falsely and fraudulently represented to plaintiff that the cause of the death of said Edward was such as to bring it within an exception clause of said policy, whereby the defendant became and was liable only for the payment of one-tenth of the full benefit, to wit, $150; the full benefit being $1,500. That plaintiff being old and simple of mind, and relying on said representations of said agent, Smith, did agree to, and did, receive a check from him for the sum of $150 in settlement of her claim for said benefit. She prays that the transaction be set aside. The answer is a general denial, and by way of special defense pleads said settlement, and the failure of plaintiff to give defendant notice of the accident to the insured within 15 days thereafter, as provided by the policy. Plaintiff's reply put in issue the new matter in defendant's answer, and pleaded specifically that the failure of plaintiff to give said fifteen days' notice was waived by defendant.

In the policy there is a provision to the effect that: "In case of loss of life, limbs or sight, as above provided, from unnecessary exposure to danger or to obvious risk of injury, or from any narcotic, infection, poison, * * * the limit of the company's liability shall be one-tenth the amount which would otherwise be payable under the policy, anything herein to the contrary notwithstanding; payable within thirty days of receipt of satisfactory proofs thereof. * * *" The evidence of A. A. Smith, the secretary of defendant, who came to Kansas City on August 29th and saw plaintiff at her home in said city, was that in a conversation with her she told him about the manner of her son's death, and that he asked her to come to the Midland Hotel in the afternoon and bring her husband, or some member of her family, or some business friend in whom she had confidence who was familiar with the English language and business affairs; the plaintiff being a Swede, and somewhat unfamiliar with said language. Smith's testimony was to the effect that he called plaintiff's attention to the fact the company had not been notified of the accident within 15 days after it occurred, as provided by the policy. That her excuse was that she was sick, worried, and did not think of it. That she came to the hotel in the afternoon with her son and husband. That he stated to them his reason for wanting to see them was because he wanted to know why the company had not been notified as required by the policy. That the failure to give such notice relieved the company from all liability. She gave the same excuse as that given when he saw her at her home; that he then told her that, if the notice had been given as required, she could not have recovered more than one-tenth of the principal sum under the clause of the policy covering infection and surgical...