McCutchan v. Kansas City Life Ins. Co., 24673.
| Citation | 122 S.W.2d 59 |
| Decision Date | 06 December 1938 |
| Docket Number | No. 24673.,24673. |
| Parties | McCUTCHAN v. KANSAS CITY LIFE INS. CO. OF KANSAS CITY, MO. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Cape Girardeau Court of Common Pleas; L. L. Bowman, Judge.
"Not to be published in State Reports."
Action by Bertha L. McCutchan, an insane person, by T. J. Brown, Jr., her guardian, against the Kansas City Life Insurance Company of Kansas City, Missouri, a corporation, to recover the face amount of a life policy. Judgment for defendant, and plaintiff appeals.
Affirmed.
Ashby & Banta, of Charleston, for appellant.
J. C. McDowell, of Charleston, and James W. Broaddus and Frank W. McAllister, both of Kansas City, for respondent.
This suit was brought by appellant, hereinafter referred to as plaintiff, against respondent, who will be called defendant, to recover $2500, the face amount of a life insurance policy issued by defendant to Elisha P. McCutchan, in which Bertha L McCutchan, his wife, who is plaintiff herein, was named as beneficiary. The cause was originally instituted in the Circuit Court of Mississippi County, but was transferred, on a change of venue, to The Cape Girardeau Court of Common Pleas where it was tried before the court and a jury, resulting in a verdict and judgment for defendant. Plaintiff appeals.
Plaintiff's amended petition alleged that she was the wife of Elisha P. McCutchan; that defendant, on March 15, 1935, executed and delivered to Elisha P. McCutchan a policy of insurance wherein it insured his life for the sum of $2500, payable to Bertha L. McCutchan, plaintiff herein, upon proof of the death of Elisha P. McCutchan; that the insured died on July 4, 1935, and that said policy of insurance was then in full force and effect; that, on July 9, 1935, plaintiff informed defendant of the death of Elisha P. McCutchan, and, on August 26, 1935, demanded payment from defendant of the amount of said policy, but that defendant refused to pay. Plaintiff prayed judgment for $2500, the amount of the policy.
Defendant filed an amended answer, upon which the case was tried, in which it alleged that there had been a cancellation of the policy and an agreement by the insured consenting to said cancellation. Defendant also alleged facts at great length in which, as a further defense, it stated that it was induced to execute and issue two policies of insurance, each for $2500, one upon the life of Elisha P. McCutchan and another upon the life of Bertha L. McCutchan, plaintiff herein, by the willful and fraudulent acts and representations of the insured Elisha P. McCutchan and the beneficiary, Bertha L. McCutchan, plaintiff herein, which were made for the purpose of defrauding defendant; that the insured named in the policy sued on herein, prior to and at the time of making application for said policy, willfully and fraudulently entered into a scheme with C. V. Williams, acting agent of defendant, and one Bud Greece to take out two insurance policies in defendant company, one on his own life and one on the life of his wife, Bertha L. McCutchan, for $2500 each, said policies to be policies not requiring a medical examination; that the plan was that Williams and Greece were to pay the necessary cash payments to defendant company to get said policies; and that McCutchan was to sign a promissory note for $109.60 so that Williams could send the same to the company with the applications for the insurance; that it was further understood, as a part of said plan, that McCutchan, after said policies were issued, was to kill his wife and collect the $2500 insurance from defendant company; that, in pursuance of said plan, McCutchan and Williams made out the applications for the policies; that McCutchan answered all necessary questions for both policies, and Bertha L. McCutchan never knew what answers were put in said applications because she was sick and insane at the time they were made, as well as at the time the policies were issued, and has since been adjudged insane and sent to an insane asylum; that McCutchan, at the time he made application for the policy of insurance sued on, was a pauper, a drunkard, and had been on relief, all of which facts were known to the parties to the scheme at that time and at the time said policy was issued; that defendant issued the policy sued on herein relying upon the truthfulness of the facts and representations in said application, and forwarded both policies to Williams for the purpose of having them delivered to each of the insured; that, as a part of the fraudulent scheme of McCutchan, Williams and Greece, the policies were delivered to Greece who paid, or caused to be paid, to defendant the necessary cash to obtain said policies; that later, McCutchan, the insured in the policy sued on, refused to carry out his part of the fraudulent scheme by refusing to kill his wife; that defendant company, upon learning of the fraudulent scheme, sent its agent, Dr. M. S. Bodine, to cancel said policies; that Dr. Bodine attempted to get said policies but failed because Bud Greece had them in the State of Illinois; that as a direct result of the fraudulent scheme entered into by McCutchan, Williams and Greece, and because McCutchan refused to carry out the scheme to kill his wife, McCutchan was, by or through the efforts of Williams and Greece, murdered on the night of July 3, 1935. Defendant alleged that it did all in its power to prevent said murder and to protect its interest, and returned to Bertha L. McCutchan all of the cash which had been sent to it by Williams as part payment on said policies, including the one sued on; that she accepted the same; that, at the time of the issuance of said policies, Williams and Greece were colluding with Bertha L. McCutchan, the beneficiary in the policy sued on, and that she actually agreed and consented, at the time of the making of the application and the issuance of said policy, to kill her husband for the purpose of collecting the insurance money.
Defendant further alleged that, had it known that McCutchan was colluding with its agent Williams and others, it would not have issued the policy sued on; that defendant knew nothing of said conspiracy or fraudulent scheme between its agent and Bertha L. McCutchan, and did not know of the poverty and condition of Bertha L. McCutchan; that the representations upon which the policies were issued were all false; that, had it known that McCutchan was a drunkard and a pauper and that his wife was colluding with its agent Williams and others to fraudulently obtain the policy sued on, defendant would not have issued either of said policies; and that the said false representations and schemes were material facts leading to the issuance of said policy and contributed directly to the death of insured, as aforesaid.
Plaintiff's counsel contend that the court erred in allowing testimony to be introduced as to the statements of the alleged coconspirators because, as they contend, it was not shown, independently of said statements, that a conspiracy existed. Counsel argue that a conspiracy cannot be established in the first instance by the declarations of one of the supposed conspirators; and assert that, to render the statements of alleged coconspirators admissible, it must first be shown by independent evidence that a conspiracy existed.
At the beginning of the trial, a number of admissions were formally made by the parties. It was admitted that Elisha P. McCutchan died as pleaded in plaintiff's petition; that notice of loss under the policy was given to defendant and liability thereon denied by defendant. It was further admitted that Policy No. 673972, dated March 15, 1935, was issued by defendant on the life of Elisha P. McCutchan. It was further admitted that the note dated March 8, 1935, for $109.60 was the original note signed by Elisha P. McCutchan, given to and made payable to C. V. Williams as part of the first premium on the policy sued on herein and another policy; that said note for $109.60 was mailed to the defendant company with the applications for the insurance.
The evidence discloses that C. V. Williams was an insurance agent; that he lived in Charleston, Mississippi County, Missouri, and represented the defendant company and other insurance companies; that the insured and his wife, plaintiff herein, lived four or five miles north of Wyatt, a small town about nine miles east of Charleston, Missouri; that they had two small children; that, on and prior to March 5, 1935, plaintiff was in poor health, and that the McCutchan family was in a destitute condition, having been for some time on relief; that McCutchan was a day laborer, who worked around farms wherever he could get anything to do; that at the time the policies were written, he was working for the WPA near Wyatt, Missouri.
Henry Bailey, an insurance man of Charleston, Missouri, called as a witness for plaintiff, testified that The witness further testified that he went with C. V. Williams to the home of the McCutchans on June 4, 1935; and, when informed that McCutchan and his wife each carried a $2500 life insurance policy, expressed surprise to Williams concerning his sales ability in selling such an amount of insurance to people who were scarcely able to pay any premium for insurance; that Williams told the witness that something was going to take place there, and invited the witness in as a party and offered to pay the witness $200 for cashing the check; that Williams told the witness that he (Williams) was to receive $1,000; that the witness heard Williams tell Mrs. McCutchan plaintiff herein, several times that $2500 is a lot of money; that Mrs. McCutchan told Williams that she wanted to go home to her folks in...
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