Pittman v. Great Am. Life Ins. Co.

• Decision Date: 05 August 1974
• Docket Number: No. KCD,KCD
• Citation: 512 S.W.2d 857
• Parties: Vernon B. PITTMAN, Plaintiff-Respondent, v. GREAT AMERICAN LIFE INSURANCE COMPANY, Defendant, and Winford D. Willing, Defendant-Appellant. 26611.
• Court: Missouri Court of Appeals

Page 857

512 S.W.2d 857

Vernon B. PITTMAN, Plaintiff-Respondent, v. GREAT AMERICAN LIFE INSURANCE COMPANY, Defendant, and Winford D. Willing, Defendant-Appellant.

No. KCD 26611.

Missouri Court of Appeals, Kansas City District.

Aug. 5, 1974.

John C. Russell, Raytown, for defendant-appellant.

Dorothy F. Fardon, Lake Lotawana, John J. Cosgrove, Kansas City, for plaintiff-respondent.

Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Plaintiff, hereinafter referred to as 'Pittman', putative insured under a 'major medical policy', brought suit against defendants Great American Life Insurance Company, hereinafter referred to as 'Company', putative insurer, and Winford D. Willing, hereinafter referred to as 'Willing', owner of a general insurance agency who solicited Pittman for the insurance. The action was initiated in the Magistrate Court of Jackson County, Missouri. Trial therein resulted in a judgment in favor of the Company and Willing, from which Pittman perfected an appeal to the Circuit Court of Jackson County, Missouri. The case was tried de novo before the circuit court sitting without a jury, resulting in a judgment for the Company and against Pittman, but in favor of Pittman and against Willing assessing Pittman's damages at $1,407.85. No findings of fact or conclusions of law were requested of or made by the trial court. Willing alone appeals from the judgment entered by the trial court.

Viewing the pleadings, evidence and briefs collectively, this court has concluded that Pittman's theory of recovery against the Company was for breach of an insurance contract (now moot, since Pittman did not appeal from the judgment entered in favor of the Company), while his theory of recovery against Willing was in tort, namely, that Willing negligently failed to timely notify him that his application for insurance had been rejected, thereby causing him damage.

The perimeter of appellate review of this case is drawn by Rule 73.01(d), V.A.M.R.: '. . . The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. . . .'. See also: Long v. Kyte, 340 S.W.2d 623 (Mo.1960) and Independence Flying Service, Inc. v. Ailshire, 409 S.W.2d 628 (Mo.1966). Even though no findings of fact or conclusions of law were requested of or made by the trial court, it will be assumed that all fact issues were found in accordance with the judgment entered, and, absent the appearance of assigned errors, the judgment will be affirmed if it is correct under any theory supported by the evidence. Lossing v. Shull, 351 Mo. 342, 173 S.W.2d 1 (1943); McIntosh v. White, 447 S.W.2d 75 (Mo.App.1969); and Atherton v. Atherton, 480 S.W.2d 513 (Mo.App.1972).

Heeding the above principles, and bearing in mind Pittman's theory of recovery ferreted from the pleadings, the evidence and briefs, attention now focuses on whether the judgment entered by the trial court was 'clearly erroneous'. Willing levels three charges against the judgment which he claims renders it 'cleary erroneous'. After careful study and analysis of the three charges, and viewing them in conjunction with the argument portions of his brief, they may fairly be paraphrased as follows. First, the judgment is not supportted by credible evidence and is contrary to controlling and applicable law. Second, the judgment is based on findings which lend no credence 'to substantial credible evidence by and on behalf of Willing'. Third, the judgment is based on testimony of Pittman which inherently lacked credibility and which should not have been admitted even though no objection was lodged thereto.

Only that evidence deemed necessary to dispose of Willing's charges leveled against the judgment, and concomitantly to resolve whether the judgment was 'clearly erroneous', will be set forth.

Willing had owned and operated a general insurance agency in Kansas City, Missouri, for approximately twenty-five years. On December 22, 1969, Willing called on Pittman and recommended to him that he needed some form of medical insurance for himself and his sons. Pittman at that time was engaged in the moving and storage business, under the name of Vernon Pittman Van Lines, and Willing was his 'insurance representative' for 'general liability', 'warehouse liability', 'auto and truck fleet' and 'fire insurance'. Pittman acceded to Willing's recommendation concerning a need for some form of medical insurance for himself and his family (three sons, Roy, Ralph and Ronald) and an application was prepared by Willing and signed by Pittman to submit to the Company for issuance of a $500.00 deductible major medical policy covering Pittman and his three sons. At the same time Pittman signed a blank medical authorization and delivered his personal check to Willing in the amount of $34.60, made out to the Company, to cover the first quarter of premium.

The application prepared by Willing and signed by Pittman, dated December 22, 1969, immediately above Pittman's signature, contained the following: 'I understand and agree that no coverage shall be in force until the policy is issued, and if issued, that coverage will be in force as of the effective date shown on the issued policy.' Pittman testified that he did not read the application, either before or after signing it, although he orally supplied the information requested by Willing and contained in the application, and was unaware of the provision just mentioned. Pittman further testified that when he signed the application Willing said, '. . . if I didn't receive cancellation within ten days I can assume my policy would be issued . . .' and 'It takes about ten days to get a policy. If it was going to be declined, it would be declined within that ten days.' Willing, during the course of his testimony took sharp issue with Pittman regarding the matter just mentioned. Willing testified that Pittman read the application before signing it and he, Willing, at no time assured Pittman that he could assume the policy would be issued if it was not cancelled or declined within ten days.

When Willing left Pittman's place of business on December 22, 1969, he took the signed application, blanket medical authorization and first quarter premium check with him and apparently forwarded them to the Company's home office in Newark, New Jersey. The first quarter premium check cleared Pittman's bank on January 9, 1970.

Pittman testified that sometime during the first part of January, 1970, he called Willing's office, since he had never received the policy of insurance applied for, at which time Willing told him, '. . . that the policy, the reason--sometimes it takes a while to get it, don't worry about it. As long as it was not rejected I would be covered.' Pittman further testified that during the latter part of January, 1970, since he still had not received the policy of insurance, he again called Willing and Willing told him 'The same thing, still takes time and it would be forthcoming.' Willing denied both of the aforementioned conversations.

Around February 1, 1970, Willing called Pittman and told him to contact his doctor to get him to submit a medical report which the Company had requested. Pittman immediately went to his doctor and asked him to submit the report. Pittman testified that even though Willing called and told him to contact his doctor and get him to submit the requested medical report, he still had 'no doubts at all' but that he was covered 'by a medical policy of insurance' with the Company.

Company's Exhibit No. 3 was identified as a copy of an underwriting notice dated February 6, 1970, which it mailed to Willing, regarding Pittman's application for a major medical policy. Willing admitted that his office received the original underwriting notice which Exhibit No. 3 was a copy of. In part, the underwriting notice stated as follows: 'We are unable to approve this application because of lack of underwriting info. After you notify the applicant of our action and refund any premium collected, please indicate such notification by signing this form and return it in the enclosed self-addressed envelope. If a reply is not received by 2/17/70 a letter of declination will be mailed to the applicant. Enclosed is refund check for $34.60.' Attached to the underwriting notice was a check dated February 5, 1970, drawn by the Company to the order...