Menzenworth v. Metropolitan Life Ins. Co.

• Decision Date: 08 February 1923
• Docket Number: No. 17518.,17518.
• Citation: 249 S.W. 113
• Parties: MENZENWORTH v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

249 S.W. 113

MENZENWORTH v. METROPOLITAN LIFE INS. CO.

No. 17518.

St. Louis Court of Appeals. Missouri..

February 8, 1923.

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

"Not to be officially published."

Action by Adele Menzenworth against the Metropolitan Life Insurance Company. From an order granting a new trial after verdict for defendant, defendant appeals. Affirmed, and cause remanded.

Fordyce, Holliday & White, of St. Louis (Wm. J. Tully, of New York City, of counsel), for appellant.

Oliver T. Remmers and James J. O'Donoboe, both of St. Louis, for respondent.

NIPPER, C.

Plaintiff, who was the beneficiary in a life insurance policy, instituted a suit on the 20th of December, 1919, to recover on the policy, dated the ____ day of January, 1919.

The petition is in the usual form, and alleges, among other things, the issuance of the policy to Fannie Menzenworth, plaintiff's mother, by the terms of which defendant insured the life of Fannie Menzenworth and promised to pay plaintiff, upon receipt of proofs of death, the sum of $500, less any indebtedness to the defendant, and any unpaid balance of the premium for the uncompleted policy year; that the insured had complied with the terms of the contract, and had died on the 9th day of June, 1919; that plaintiff demanded of defendant payment of the amount due under said policy, but that defendant had vexatiously, willfully, and in bad faith, refused to pay the amount. Plaintiff asked judgment for $500, with interest at the rate of six per cent., with 10 per cent as damages and reasonable attorney's fees.

Defendant in its answer first admitted that it was a corporation duly incorporated under the laws of the state of New York, and licensed to transact business in the state of Missouri, and then denied each and every allegation in plaintiff's petition. As an affirmative defense, defendant stated that, on or about the 8th day of January, 1919, deceased made application for insurance in the defendant company, in the sum of $500, to be made payable to plaintiff as beneficiary, and that deceased represented that she was then and there in sound health, and had never been under the care of any physician within two years from the date of said application, and had never been under treatment in any dispensary or hospital, and had never been seriously ill nor suffered from any disease of the liver, gallstones, or nephritis; that said application was forwarded to the home office of the defendant company, and defendant, relying upon the truthfulness of the answers made by deceased in her application and without knowledge of the falsity thereof, on the 23d day of January, 1919, issued the policy of insurance in question, and delivered it to deceased, in the city of St. Louis, and state of Missouri, and did insure the life of deceased in the sum of $500, and, upon the death of said insured, and upon proof thereof, said policy became payable to plaintiff; that said policy was secured and obtained through misrepresentations, concealment of material facts, and fraud, by insured, of her true condition of health at the time the application was signed and the policy issued; that said material facts so misrepresented by deceased contributed to cause the event upon which the policy became payable, and at the time said policy was issued, and the application signed, deceased was suffering with a disease known as disease of the liver, gallstones, and nephritis, and had been under the care of physicians in the city of St. Louis, and treated in a hospital long prior to the signing of said application.

Defendant also stated that deceased died on the 9th day of June, 1919, and that death was caused by abscess of the liver from an infected gall bladder, contributing to the disease known as nephritis, from which plaintiff had suffered long prior to the date of the application for insurance; that defendant would not have issued said policy had It known of such facts. Defendant deposits in the court, for the benefit of plaintiff, the sum of $10.90, covering the amount of premium on said policy.

The reply was a general denial.

Plaintiff offered in evidence the policy in suit, and the evidence of one witness as to what would be the reasonable value of attorney's fees for instituting and prosecuting the suit, and then rested.

The defendant offered in evidence the testimony of doctors, showing that the insured had been operated upon in September, 1918, for gallstones, and was again operated upon for a similar trouble in March, 1913. Also, the certificate of the board of health—vital statistics—covering the death of the deceased, showing that she died from ruptured hepatic abscess, and also abscess of lung and pleura; that the duration of this cause of death was one year and nine months, and that the contributory cause was nephritis. Also, the proofs of death, signed by the doctors, showing the primary cause of death as abscess of liver from infected gall bladder,...