McCormick v. Travelers' Ins. Co.

• Decision Date: 31 December 1923
• Docket Number: No. 14525.,14525.
• Citation: 264 S.W. 916
• Parties: McCORMICK v. TRAVELERS' INS. CO.
• Court: Missouri Court of Appeals

264 S.W. 916

McCORMICK v. TRAVELERS' INS. CO.

No. 14525.

Kansas City Court of Appeals. Missouri.

December 31, 1923.

Rehearing Denied January 21, 1924.

Certiorari Denied July 17, 1924.

Appeal from Circuit Court, Jackson County; Thad B. Landon, Judge.

Action by Frances B. McCormick, administratrix of Louis D. McCormick, deceased, against the Travelers' Insurance Company. From judgment for plaintiff, defendant appeals. Reversed.

O. C. Mosman, Clay C. Rogers, and P. A. Buzard, all of Kansas City, for appellant.

McVey & Freet and L. C. Harper, all of Kansas City, for respondent.

TRIMBLE, P. J.

Action oil an insurance policy of $5,000 issued by defendant upon the life of Louis D. McCormick, dated February 1, 1916, and afterwards made payable, in the event of his death, to his estate. He died March 11, 1919, and his widow, as administratrix, brought this suit on March 23, 1921. From a verdict and judgment in plaintiff's favor for $5,503.12, the amount of the policy with interest, defendant has appealed.

The petition is in the usual form, except that neither the policy nor a copy thereof is attached, the petition alleging that

"Said insurance policy is now in the possession of defendant, and defendant has full knowledge thereof, and this plaintiff is by reason thereof unable to set out a copy of said policy."

Defendant's duly verified answer, after a general denial, specifically denied that the policy was la force on March 11, 1919, the date of McCormick's death, and then set up that on or about March 3, 1919, McCormick surrendered said policy for its cash surrender value, to wit, $180, which defendant paid to him, and he executed a surrender deed thereto, a duly verified copy of which was attached to the answer.

In reply, plaintiff, in addition to a general denial, alleged that prior to the date of the execution of the alleged surrender deed, defendant negotiated an arrangement with McCormick to change the form of his insurance, wherein policy No. 345913 (the policy sued on) was to be canceled and a new policy of $5,000, written at a smaller premium rate, was to be substituted for the other policy, all as one continuous and single transaction; that on March 3, 1919, McCormick signed and delivered to defendant's agent the surrender deed in accordance with said arrangement, and also signed and delivered an application for new insurance and was physically examined, all as a part of the same arrangement ; that it was the agreement and a part of the said arrangement that policy No. 345913 should not be canceled until said new policy took effect, and that the cancellation and surrender of the old policy was conditioned on the acceptance by defendant of the new application and the issuance of the new policy.

Said reply further alleged that the consideration of $180 recited in said surrender deed was not paid to McCormick and that he died before there was a payment or tender of said sum to him, and that said surrender deed was without force or effect; that defendant issued a draft for the $180 payable to McCormick and forwarded the same by mail from the home office to defendant's Kansas City office, and McCormick's name was evidenced thereon by defendant's agent without McCormick's knowledge or authority, and defendant has denied liability on the new insurance applied for by McCormick, and is now estopped from claiming that policy No. 345913 was canceled or surrendered, and from claiming that said policy is not in force.

In a rejoinder, defendant denied that it entered into any negotiations of an arrangement with McCormick for a change in the form of his insurance, but alleged that the transaction whereby policy No. 345913 was canceled was a separate and distinct transaction, in no wise dependent upon or in consideration of the writing of any new policy by defendant; that McCormick did, on March 3, 1919, file an application for a policy of insurance and was examined by a medical examiner, but no policy was ever issued there. on, McCormick having died before said application and medical examination were ever passed upon by defendant; that defendant received from McCormick along with said new application a check for $34.85, which defendant duly tendered to plaintiff, but she refused to accept same and it is now tendered and paid into court for her use and benefit.

The trial proceeded in this wise: Plaintiff offered in evidence the policy sued on, and then, after a stipulation as to plaintiff being administratrix and that McCormick died at Excelsior Springs at 2 a. m. of March 11, 1919, plaintiff, "for the purpose of proving denial of liability and consequent waiver of formal proof of death," offered in evidence the "material part" of a letter from defendant's Kansas City cashier, addressed to plaintiff personally and dated March 18, 1919, said part so offered stating that the writer is informed that addressee had requested blank proofs of death for policy No. 345913 but that said policy "was surrendered for cash on March 6, 1919, the surrender deed being signed by your husband on or about March 1st, and the company's check for $180, being the full amount of such cash surrender value, having been accepted by your husband prior to his death. * * * I am holding, pending the appointment of an administrator of Mr. McCormick's estate, the sum of $34.85, which Mr. McCormick paid at the time he made application for new insurance on March 1st." Plaintiff thereupon rested, and defendant demurred to the evidence, which the court overruled.

Defendant thereupon introduced evidence showing that on March 10, 1919, McCormick had a balance of $6.04 to his credit in his account in the Liberty Trust Company of Kansas City, and that on that day defendant's draft for $180 dated Hartford, Conn., March 6, 1919, payable to McCormick and indorsed, "F. D. McCormick, by F. D. M., for deposit with Liberty Trust Co., Kansas City, Mo.," was presented to said hank, and the amount of said check was placed to McCormick's credit in his regular bank account. Other evidence shows that this check arrived in Kansas City on March 10, 1919.

Defendant further introduced evidence showing that the surrender deed, attached to the answer, was signed and acknowledged by McCormick on March 3, 1919. Said deed recited that It was executed "in consideration of one hundred eighty dollars to me in hand paid, the receipt of which I do hereby acknowledge as to my full satisfaction," and for which insured conveyed and set over to defendant all right, title, claim, interest, and benefit he had, or may have, in and to policy No. 345913. It was then stipulated and agreed between counsel that said policy provided for a surrender value of $180 at the end of three years, and the policy shows this on its face.

In rebuttal, plaintiff took the stand and testified that McCormick went from his home in Kansas City to Excelsior Springs on March 8, 1919, and that from that time she was with him continuously at Excelsior Springs until an hour before he was found on the 10th of March, 1919, in his room, unconscious from a pistol shot wound from which he died on the morning of March 11, 1919, without ever having regained consciousness. It was further shown in evidence that McCormick did not indorse the $180 draft deposited to his account, but that this indorsement and deposit were made by F. D. Masden, defendant's soliciting agent in Kansas City.

In a suit by plaintiff individually against defendant, she had taken, in Hartford, Conn.., the deposition of Lewis M. Robotham, defendant's assistant secretary in charge of its life department, and in this deposition had called for and examined him about certain letters and papers which were attached to said deposition as exhibits. In the trial of the case at bar, plaintiff, in rebuttal, offered this deposition in evidence "by agreement of parties," and read therefrom a portion of the direct examination of Robotham to the effect, among other things, that he had in his possession the application for the new policy, and that It was received by defendant in Hartford on March 7, 1919, from the Kansas City office; said application was attached to said deposition as Exhibit A, but on being introduced by plaintiff became Exhibit 4 at the trial. Said application shows that it was signed by McCormick and taken by Masden on March 1, 1919. Beneath the signature of McCormick was a blank statement for applicant's signature in which he could state the amount of cash paid and to whom paid and that he held the payee's receipt therefor. This, however, was wholly in blank and unsigned by applicant. Below this, however, and with a perforated line between, was a binding receipt dated March 3, 1919, signed by Masden, acknowledging that he had received from McCormick the sum of $34.85, "the sum declared by applicant in his application to have been paid in cash" on certain named conditions. The company reserved the right to disapprove of the application, and it was provided that if the policy applied for should not be issued within 60 days the premium would be surrendered to applicant on the company's receiving the binding receipt. The application was for $5,000 of what is denominated "term insurance," which called for the payment of a total an premium of much less than that called for in the old policy. There was no reference, however, in any manner whatever to old policy. It was also shown that on the day the application was taken, March 1, 1919, McCormick gave his check dated March 3, 1919, for $34.85 to pay the first portion of the premium on the new policy.

Plaintiff also read from Robotham's deposition showing that McCormick had undergone a medical examination in connection with the new application, and that the report of a medical examiner had been made; but before the application and medical report had passed through the regular routine of such matters in the home office, a telegram had been received announcing the death of applicant, and...