Mannion v. John Hancock Mut. Life Iins. Co. of Boston, Mass.

• Citation: 273 S.W. 201
• Decision Date: 02 June 1925
• Docket Number: No. 18895.,18895.
• Parties: MANNION v. JOHN HANCOCK MUT. LIFE INS. CO. OF BOSTON, MASS.
• Court: Missouri Court of Appeals

273 S.W. 201

MANNION v. JOHN HANCOCK MUT. LIFE INS. CO. OF BOSTON, MASS.

No. 18895.

St. Louis Court of Appeals. Missouri.

June 2, 1925.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Bridget Mannion against the John Hancock Mutual Life Insurance Company of Boston, Mass. From a judgment of the circuit court in favor of plaintiff on appeal from the justice court, defendant appeals. Reversed " and remanded for new trial, unless plaintiff enter remittitur.

Leahy, Saunders & Walther, of St. Louis, for appellant.

Arthur F. C. Blase, and Robert J. Kratky, both of St. Louis, for respondent.

DAVIS, C.

This is an action by the wife of the insured and the beneficiary of an insurance policy issued on his life to recover thereon upon his death. Having originated in the justice court, the cause was duly appealed to the circuit court of the city of St. Louis, where the jury returned a verdict in favor of plaintiff for the amount of the policy in the sum of $250, together with interest for $39.36, damage for vexatious delay for $25, and an attorney's fee for $250; the court entering an aggregate judgment for $564.36, from which defendant appealed.

Plaintiff's evidence tends to show:

That defendant, on September 8, 1920, issued policy 12940661 on the life of Mathew Mannion, with Bridget Mannion, his wife, named therein as beneficiary, for $250, the full policy amount. The policy provided as follows:

"This policy shall not take effect unless upon its date the insured shall be alive and in good health and the premium duly paid. * * * This contract of insurance is based upon the declarations in the application, of which the following is a copy: (3) I am now in good health except as here stated. I have stated all exceptions. (4) I have no bodily or mental defect or infirmity except as here stated. I have stated all exceptions. (5) I have not had, within five years, any sickness, ailment, disease (bodily or mental), or any injury or surgical operation, except as here stated. I have stated all exceptions, and every case when I have consulted or received treatment from a doctor at his office or elsewhere. (6) I have never received nor applied for treatment at or in any hospital, dispensary, sanitarium, cure, or other institution, except as here stated. I have stated all exceptions, with times and places of such treatment or applications.'"

That Mathew Mannion died on May 21, 1921. That defendant knew that insured died, because plaintiff went to its office on Grand avenue, from which place defendant collected the premiums. That she was given a paper, which she signed. That she went down one hot day, and at last a man came out and had some money and a paper, and he said: "Lady, your husband was sick before we issued this policy. Here is the money back you paid, and sign this paper." She said: "No; I sign no paper." That she refused to take the money, and walked out of the office. That a doctor examined her husband in her own sitting room before the policy was issued, after which the policy was issued.

On cross-examination she stated: That she went to the office of the company; was interrogated by some one who wrote down her answers, and she signed that. That she did not have another paper executed by the attending physician, and did not return one. That she never brought it back. That they did it. They simply asked what doctor waited on insured. That she was asked if insured was treated at Barnes Hospital, and replied: "The first time to my knowledge I can't give the day nor date, but I can strongly think it would have been perhaps in June." That she went to Barnes Hospital with him, and he was treated by Dr. Eyerman, but did not know the cause of the treatment. That she was asked if she was furnished a pink paper at the office of the company to have it executed, and if she did not have it executed and furnished it to the company, and she answered that "she never went to get this paper; that they must have got it." That she did not know where Dr. Eyerman lived. That plaintiff was asked if she remembered this question and answer: "Has deceased ever been an inmate of any hospital or other institution, or received treatment from any dispensary?" The answer to the question was: "Barnes Hospital, 1921, to April, 1921." Plaintiff replied: "That is when he went to come out." That plaintiff, upon being asked if she had not stated a while ago, on cross-examination, that it was in 1920, replied: "Well, I stated in 1920, which I don't know— probably, yes, but afterwards they took him in there in March of '21. That he wasn't there but one time at the dispensary, that is all, and he never went back." That a man offered her money, which must have been an offer of the return of the premium, telling her they heard he was sick for many months; plaintiff stating that she objected to that, and it wasn't so. That she was asked at that time if the reason the company refused to make payment was because the insured suffered from angina pectoris prior to the issuance of the policy, and that he died from that, plaintiff answering: "I never heard such a remark as that." That there was not anything he was suffering with except a short time before his death.

On redirect examination, plaintiff testified that assured was working at the time the policy was issued, and he worked until about November 28th, and for 40 years before that, never losing any time in sickness.

Plaintiff's evidence further tended to show that a reasonable attorney's fee for the services performed for plaintiff in this case was $250.

Defendant's evidence tends to show that defendant's attorney stated as follows: "It is admitted by the plaintiff in this case that in the justice court the defendant made a tender of $18.80."

Defendant's evidence further tends to show: That witness Kissler was employed between December 19, 1920, and February 19, 1923, in defendant's office on Grand avenue. That he called off the questions and wrote down whatever answers plaintiff gave him, having her sign her name, and witnessing her signature and taking her affidavit. That with respect to the pink paper, which was the certificate of the attending physician at death, witness told plaintiff that some proof of assured's death was necessary, and he gave her the paper with a notation to have it sworn to, and several days later plaintiff returned it to him. That the paper was not in plaintiff's handwriting. That the claimant's certificate, signed and sworn to by plaintiff, tends to showy that assured died May 21, 1921, 11:30 a. m., at St. Louis, Mo. That his occupation was clerk for St. Louis Transfer Company. That he quit work in October, 1920. That, in answer to the question, "When did deceased first complain of ill health, and what was the nature of the trouble complained of?" the answer was, "Stroke of paralysis;" and to the question, "What was the duration of illness?" the answer was, "Sudden death." That in answer to the question, "Has deceased ever been an inmate of any hospital or other institution, or received treatment from any dispensary?" the answer was: "Barnes Hospital, March, 1921, to April, 1921." That the claimant's certificate shows it was dated and sworn to May 25, 1921.

The certificate of attending physician at death, Dr. Eyerman, tends to show: That the immediate cause of assured's death and the primary cause was angina pectoris. That the date of his first visit or prescription in last illness was 5-14-20, and the date of last visit was 5-19-21. That, in answer to the question, "When, in your opinion, was health first impaired?" the answer was, "Patient states 3 months prior to first visit." That, in answer to the question, "Was deceased ever an inmate of, or received treatment in, any hospital dispensary or public institution?" the answer was, "At Washington University Dispensary and Barnes Hospital."

The testimony of de...