Metropolitan Life Ins. Co. v. Underwood

Decision Date20 November 1923
Docket NumberNo. 23453.,23453.
Citation301 Mo. 87,256 S.W. 232
PartiesMETROPOLITAN LIFE INS. CO. v. UNDERWOOD.
CourtMissouri Supreme Court

Appeal from Circuit Court, Carroll County; Ralph Hughes, Judge.

Suit by the Metropolitan Life Insurance Company against George M. Underwood. Judgment for defendant, and plaintiff appeals. Affirmed.

Haff, Meservey, German & Michaels, of Kansas City, Lozier & Morris, of Carrollton, and Blackmer & Bundschu, of Kansas City (William J. Tully, of New York City, of counsel), for appellant.

Atwood & Atwood, Ben S. Heins, and Conkling & Withers, all of Carrollton, and Busby, Sparrow & Patterson, of Kansas City, for respondent.

SMALL, C. L.

The suit is in equity to cancel a combined life and accident policy, issued on June 11, 1920, on the life of the defendant, George M. Underwood, for $10,000, in favor of his wife, Nellie M. Underwood, with a surrender value payable to defendant if living after the payment of 20 successive yearly premiums, with the further provision that, if defendant should become permanently disabled, plaintiff insurance company would pay defendant during the continuance of such disability, a monthly annuity of $100, and that the severance of both hands, or both feet, "or of one entire hand, and one entire foot, would be considered, as total disability, within the meaning of the terms of said policy." It was further provided, that should defendant die, as the result of bodily injury, from external, violent, and accidental means, within 60 days after such injury, the company would pay the beneficiary the further sum of $10,000.

Numerous grounds of fraud are alleged in the petition for setting aside said policy, but all are abandoned here except the following: That defendant was in straitened financial circumstances, and he applied for and procured such insurance, with the intention to deliberately undertake to bring about total disability, within the meaning of said policy, and that within 60 hours after plaintiff's policy was delivered to defendant, in furtherance of his purpose to defraud, he caused an injury to himself by willfully protruding hie left arm and left leg under the wheels of a moving train on the Wabash Railway near Excelsior Springs, Mo., for the purpose of having the same severed, and that, as a result thereof, defendant's left foot was so injure that it had to be amputated, and his left hand was also injured,

"but not so badly that complete amputation above the wrist was necessary, but that defendant willfully neglected medical attention to his hand, so that it had to be amputated. * * * That said injuries have rendered defendant more susceptible and liable to the risk of loss of his life by accident in the future * * * and have lowered defendant's expectancy or chance to live out his expectancy."

The answer admitted the execution and delivery of the policy sought to be canceled, and put all the other allegations of the petition in issue, and also set up a counterclaim, alleging the issue of said policy, its terms, and conditions, payment of the premium, and that defendant was injured on June 16, 1920, by his left foot and left hand being run over and injured by a moving train, so as to require the amputation thereof, constituting total and permanent disability, within the meaning of said policy, whereby plaintiff became liable to defendant from 6 months, after June 30, 1920, for a monthly annuity of $100 per month, during the remainder of defendant's life, in addition to all other benefits provided by said policy, together with damages and attorneys' fees for vexatious delay, for all of which defendant prayed judgment.

The reply put the new matter of the answer and the cross-bill in issue.

The court rendered judgment against the plaintiff on its petition, and in favor of the defendant on his cross-bill (but not for attorneys' fees or damages for vexatious delay), from which plaintiff appealed to this court.

The whole question in this court is whether or not the defendant voluntarily caused his hand and foot to be run over by a train on the Wabash Railway, just after dark, about 9 p. m., on June 16, 1920, in the suburbs of Excelsior Springs, as claimed by the plaintiff, or whether defendant was, at that time and place, after being robbed of some $70, tied upon said railroad track by the robbers, and that by reason thereof his left hand and left foot were run over and had to be amputated. The evidence is very voluminous and takes a wide range. The record consists of some 1,300 printed pages.

The story, as told by Underwood in his deposition, which occupies one-fourth of the record, which plaintiff took in February, 1921, and read in evidence, as an admission at the trial, was substantially, as follows: He was born and raised in Carroll county, Mo., on a farm, near Wakenda and Carrollton. He had a number of brothers and sisters. He was the youngest of the boys. He remained on the farm until he was 15 years of age, when his father died. After that he engaged in various occupations, at first working as a section hand and foreman on the Wabash and other railroads. He then married and worked on his father-in-law's farm in the neighborhood for some years, and then moved to the Underwood family homestead, and lived there with his mother and his wife and two children, engaged in farming, and also in running a straw and hay baler, and perhaps the jitney business, just before moving to Carrollton. The home farm was sold in the spring of 1920, from which defendant received as his share $660. About March 1, 1920, he moved to Carrollton, where he purchased a restaurant and started in the restaurant business. He also owned two or three automobiles and engaged in the jitney business and contemplated continuing his straw-baling business. Before he moved to Carrollton he had $500 accident insurance in the Woodmen. Soon afterwards he was solicited by various insurance agents to take out further accident and life insurance. He took out a policy in the New York Life Insurance Company dated February 6, 1920, and in the Fidelity & Casualty Company of New York, dated May 24, 1920. On June 2, 1920, he took out a policy for $4,400 in the Lyon Bonding & Surety Company. This policy contains the following provisions:

"This policy does not cover any injury fatal or disabling, sustained by the insured, prior to the date of his acceptance of this policy, as the result of any act of the insured, sane or insane, done for the purpose of injuring himself; or the act of any other persons, sane or insane, done to injure the insured, except for the sole purpose of burglary or robbery."

The last policy he took out was the policy sought to be canceled in this case. The total amount of annual premiums on all the policies was $645.86. Under all the policies, in case he lost a hand and foot, he would receive $9,900 in cash, plus an annuity of $1,400 per annum during his life, and $22,000 paid up insurance payable to his wife at his death, under certain conditions, with a substantial cash surrender value.

Before defendant purchased the restaurant at Carrollton, he had for a number of years been doing business with and was indebted to the Carroll Exchange Bank, the First National Bank of Carrollton, and the Wakenda Bank of Wakenda. His father-in-law was security on his notes of $1,250 to the Carrollton Exchange Bank, and his brother-in-law upon his notes for about the same amount to the First National Bank, which the officers of the banks testified made his notes good. On June 3d, the date of the policy in question, he received notice that the $1,250 due the Carroll Exchange Bank on June 11th would have to be paid. He had on June 2d given a check on that bank for $350 to the Wakenda Bank, which on June 8th was dishonored and protested for want of funds. On June 11th, the $1,250 note to the Exchange Bank was not paid, and it remained unpaid at the time of the trial. He owed the Wakenda Bank a note of $2,500, which was secured by a chattel mortgage an his restaurant, automobiles, and other personal property. He had no real estate after the sale of the homestead in the spring of 1920. The Wakenda Bank also loaned him some $2,200 more, for which they took the notes of his wife and one, Mueller, who worked as jitney driver for him, neither of whom had any property. The capital stock of the Wakenda Bank was but $10,000, and the notes of his wife and Mueller were taken for the $2,200 loan, because Underwood had already borrowed one-fourth of the capital stock of the bank and could borrow no more under the law. After the injury to Underwood on June 16th, the Wakenda Bank was forced to reorganize and the principal stockholders took up the notes made by his wife and Mueller. The evidence shows, that his total indebtedness was about $8,000, before his injury, and that all his property, which was not worth exceeding that sum, was mortgaged; but that he was doing a fair business in his different undertakings, and that his credit was good the Wakenda Bank. He also had an offer of assistance to pay what he owed the Exchange Bank from one Kenyon, but, owing to an injury to Kenyon, the loan was not consummated, prior to the injury to Underwood. On the 14th of June, 1920, when the policy in suit was delivered, he gave a check on the Wakenda Bank to Clark, the agent of the plaintiff at Carrollton for $474.50, the amount of the first premium. He requested Clark to hold the check until the next day, which he did. On the 15th Clark deposited the check for credit in the Carroll Exchange Bank. The officers of the Exchange Bank telephoned to the Wakenda Bank and asked whether the cheek would be paid, and that bank said it would, which was afterwards done. The officials of the Bank of Wakenda testified that they would have honored any check he would have drawn on their bank for a reasonable sum, including a check for $1,200 to McDavid for a car hereafter mentioned, had Underwood purchased the same,...

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