Painter v. Prudential Ins. Co.

• Decision Date: 30 April 1934
• Docket Number: No. 17974.,17974.
• Citation: 71 S.W.2d 483
• Parties: NICEY PAINTER, APPELLANT, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, RESPONDENT.
• Court: Missouri Court of Appeals

71 S.W.2d 483

NICEY PAINTER, APPELLANT, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, RESPONDENT.

No. 17974.

Kansas City Court of Appeals. Missouri.

April 30, 1934.

Appeal from Circuit Court of Jackson County. — Hon. James R. Page, Judge.

AFFIRMED.

G.W. Duvall and W.W. Filkin for appellant.

Roy P. Swanson and Ralph M. Jones for respondent.

Meservey, Michaels, Blackmar, Newkirk & Eager of counsel.

REYNOLDS, C.

This is a suit by the plaintiff to recover a balance of five hundred dollars alleged to be due her as beneficiary under an insurance policy issued by defendant on the nineteenth day of August, 1929, upon the life of her daughter, Emma Painter, for one thousand dollars. Emma Painter died November 8, 1929. On the seventh day of March, 1930, it appears that plaintiff accepted of defendant the sum of five hundred dollars in full payment and settlement of all liability of defendant to her as beneficiary under said policy and executed to defendant a written release by which she acknowledged the receipt of said sum of five hundred dollars and forever released defendant from any and all liability on account of any claim she might have against it under said policy. It was contended by plaintiff that said release was fraudulently obtained from her by defendant; that the same was without consideration and was of no effect; that the payment to her of said sum of five hundred dollars, mentioned therein, amounted to a mere credit upon the sum of one thousand dollars, the amount due her under said policy; and that the balance of said one thousand dollars, in the sum of five hundred dollars, was yet due her from the defendant.

The petition alleged the corporate existence of defendant, the issuance of the policy, the death of the insured while the same was in force, the plaintiff to be the named beneficiary therein, the compliance by insured with all the provisions thereof and by the plaintiff with all the requirements upon her part, and the payment of the sum of five hundred dollars as part payment of the amount due under said policy. It further alleged vexatious refusal and delay in the payment thereof upon defendant's part and, on account of such refusal and delay, plaintiff's right to damages in the sum of fifty dollars and to a reasonable attorney's fee in the sum of one hundred dollars.

The judgment sought was for the balance due on the policy in the sum of five hundred dollars, for damages in the sum of fifty dollars, for attorney's fee in the sum of one hundred dollars — making a total of six hundred and fifty dollars — and for interest at six per cent from November 8, 1929.

The defendant, in its amended answer, admitted its corporate capacity as a mutual life insurance company and the issuance of the policy in suit and set up the provision therein that it should not take effect if, on the date thereof, the insured was not in sound health and set up further that, on said date, the insured was not in sound health but was afflicted with heart disease, ulcers, and dyspepsia from which she later died, particularly the heart disease. It further alleged that the policy was issued upon the written application of the insured, in which she stated that the condition of her health was, at the date of the application, good; that no physical defect or infirmity existed; that she had never suffered from heart disease, ulcers, or dyspepsia; and that such application was being made to induce the issuance of the policy by defendant. It alleged that the defendant believed and relied upon such statements in issuing the policy; that said statements were false and untrue and were known by the applicant so to be and the same were made for the purpose and with the intent of misleading defendant and inducing it to issue the policy; that defendant was misled by them into issuing said policy; that said policy was thus obtained by fraud and never became a binding contract and is of no effect but is void; and that the matters so misrepresented by insured in her application were material and contributed to the death of the insured.

The amended answer further set up that, after the death of the insured, a dispute arose between it and the plaintiff, the beneficiary, as to the liability of defendant to her under said policy beyond the amount of the premiums that had been paid thereon, the defendant denying liability for any other sum and the plaintiff contending for the full amount of the policy; that it tendered the amount of premiums paid to plaintiff who refused to accept the same; that, as a result of said controversy and in order to void the cost and expense of litigation, it was agreed between plaintiff and defendant that compromise should be effected and that defendant should pay her the sum of five hundred dollars which should be accepted by her in full settlement of her claim under said policy and in discharge thereof and that defendant should be forever released and discharged of all claims on account of said policy; that defendant did thereupon pay to plaintiff the said sum of five hundred dollars on the conditions stated and plaintiff thereupon executed and delivered to defendant a written release from liability under said policy for any and all claims, reciting and acknowledging in said release that same was in consideration of said settlement and discharge; and that, as such, it was a complete bar to plaintiff's cause of action as stated in the petition.

Plaintiff made reply in which, it may be said, she admitted that the insured made written application for the policy and that she made the statements therein — that the condition of her health at the time of such application, was good; that no physical defect or infirmity existed; that she had never suffered from heart disease, ulcers, or dyspepsia; and that said statements were made to induce the issuance of the policy — and admitted that said policy was issued thereon and that it was provided therein that it should not take effect if, on the date thereof, the insured was not in sound health. It was denied in said reply that the answers made by insured in her application were false and untrue and that insured knew they were; but, upon the other hand, it was alleged that such statements were true and believed by the insured to be true and were not made for the purpose of misleading defendant and that the issuance of said policy was not obtained by fraud and that defendant was never misled by insured's said statements. It was further denied therein that the matters alleged by defendant to have been misrepresented were material or contributed to insured's death.

Said reply further set up that a copy of insured's application did not appear endorsed upon or attached to the policy and that by the terms of said policy it was provided "This policy contains and constitutes the entire contract between the parties hereto and all statements made by the insured shall in the absence of fraud be deemed representations and not warranties, and no statement shall avoid the policy or be used as a defense to a claim thereunder unless it be contained in the application for the policy and unless a copy of such application be endorsed upon or attached to the policy when issued" as a bar to any defense pleaded in the amended answer based upon misrepresentations by the insured, if any such misrepresentations were made or found to have been made. It further denied that there was any genuine dispute between plaintiff and defendant upon or after the death of the insured respecting defendant's liability under said policy for any sum in excess of the premiums paid; denied and attacked the compromise, settlement, and release, alleged in the amended answer, as having been procured without consideration and through fraud and misrepresentation upon the part of defendant's agents to her respecting her legal rights under said policy; and averred said alleged settlement and release thereon to be invalid and of no effect. All other allegations of the amended answer were generally denied.

Upon the trial, the plaintiff introduced in evidence the policy sued upon, also the application of the insured, together with the certificate of the agent of the defendant who took the application annexed to such application showing insured's apparent condition of good health at the date of the application. She also made proof of the death of the insured and of the payment of all premiums due upon said policy to the death of insured and made proof of notice and delivery of proofs of death to defendant. Plaintiff also introduced evidence tending to show the good health of the insured at the time the policy was issued and down until about two weeks prior to her death. In her testimony, she admitted the execution of the release to defendant set up in the amended answer and the acceptance by her from defendant of the sum of five hundred dollars in full settlement of the policy but denied that there was ever any controversy or difference between her and defendant as to the amount due her under said policy, other than a mere refusal by defendant to pay the same. She denied that there was any consideration for the alleged settlement and release. She admitted that, when she accepted the five hundred dollars and released defendant, she understood that such sum was all that she was to get. She accepted said sum because defendant's agent told her that was the best they could do and that they would not pay any more because of insured's death, and she felt that the funeral expenses had to be paid. She testified that she was...