Reed v. Travelers' Ins. Co.

• Decision Date: 03 April 1933
• Citation: 60 S.W.2d 59,227 Mo.App. 1155
• Parties: CLAUDE O. REED, RESPONDENT, v. THE TRAVELERS INSURANCE CO., APPELLANT
• Court: Kansas Court of Appeals

60 S.W.2d 59

227 Mo.App. 1155

CLAUDE O. REED, RESPONDENT, v. THE TRAVELERS INSURANCE CO., APPELLANT

Court of Appeals of Missouri, Kansas City

April 3, 1933

Appeal from Circuit Court of Henry County.--Hon. Leslie A. Bruce Judge.

REVERSED.

Judgment reversed.

Henry F. Poague and Haysler A. Poague for respondent.

Mosman Rogers & Buzard for appellant.

TRIMBLE J. Shain, P. J., concurs; Bland, J., concurs in result.

OPINION

TRIMBLE, J.

Plaintiff brought suit upon an accident policy commonly known as a "ticket" policy of insurance usually sold at railway stations and ticket offices. The policy was bought about noon, October 20, 1930, good for four days, for a consideration of one dollar, the rate of premium being twenty-five cents per day.

On going into the railroad station at Clinton, Missouri, plaintiff asked the railroad agent therein to sell him an accident policy. The agent asked him his name, residence and for how many days he desired the policy. Plaintiff gave his name and residence, and said he wanted a policy for four days; and upon payment of the one dollar, was handed the ticket policy upon which this suit was brought. No other conversation was had between them.

Two days later, about 8:30 P. M., plaintiff was riding in an automobile driven by John Houk, east along Ohio Street in Clinton, Missouri, and was about to cross the Missouri, Kansas & Texas Railroad crossing thereon which ran diagonally across the street from northeast to southwest.

As they approached the crossing, the occupants of the car did not observe that a train was passing over said track and did not discover it until practically at the crossing. Plaintiff was unable to say whether the crossing was occupied by the engine or by some of the cars following it. The driver of the automobile, in the endeavor to avoid striking the train, swerved his car to the northeast along the side of the track and did not come in contact with the train; but just as the car was thus suddenly swerved, plaintiff opening the automobile door, was on the running-board intending to jump; but the sudden swerving of the automobile threw him off to the ground close to the passing train where his left arm fell across the rail and was run over by the wheels, necessitating the amputation of his left hand about three inches above the wrist.

The policy provided for an indemnity in the sum of $ 2500 if insured should, during the time of the insurance, suffer bodily injuries solely by external, violent and accidental means; "subject to the conditions and limitations herein contained," resulting, independently of all other causes, in the loss of a hand or foot by complete severance, through or above the wrist or ankle joint, within ninety days from date of accident.

On the back of the policy was a paragraph headed Additional Provisions, which, so far as applicable here, read as follows:

"Additional Provisions. 21. The insurance hereunder shall be void as to persons employed in mines, or in subaqueous work, or on iron or steel construction work, or on railroads, steamboats or other passenger or freight conveyances while on duty, or on vessels of any kind while on duty, and persons maimed, crippled or deformed, or bereft of reason, sight or hearing, and the company will return on demand to any such person, his or her executors, administrators or assigns the premium paid therefor." (Italics ours.)

Plaintiff gave notice of his accident and injury, and then it was discovered that prior to the issuance of the policy, sometime in the year 1918, plaintiff had received an injury on account of which his right leg was amputated midway between the ankle and the knee; so that, at the time of purchasing the ticket policy sued on and the time he lost his left hand, he was maimed, crippled, and was wearing an artificial lower right leg and foot; hence the company refused to pay, basing its refusal upon the above quoted provision No. 21. (The fact that plaintiff had an artificial leg and foot, at the time he purchased the policy, was not open to, or discernible by, ordinary observation.)

Upon discovery of the fact that plaintiff, at the time he bought the policy, was thus maimed and crippled and wore an artificial leg and foot, the Company, both before suit was brought and at the time of filing answer, tendered to plaintiff, and paid into court for plaintiff's benefit, the premium paid on said policy. (This plaintiff admitted in open court.)

The petition alleged that plaintiff made application to defendant for insurance; that, for a consideration paid by plaintiff, a contract or policy of insurance was issued to him as heretofore stated, wherein the company agreed to pay him $ 2500 in the event he suffered an accidental injury, within the life of the policy, which, independently of all other causes, would, within ninety days of the accident, result in the loss of one hand by complete severance, through or above the wrist; that plaintiff suffered the accident, and complied with all the conditions and provisions of the policy, demanded payment of said $ 2500, but that defendant denied all liability and vexatiously refused to pay. Wherefore judgment was asked for the amount due, with the statutory ten per cent penalty and an attorney's fee of $ 200 for such vexatious refusal.

The answer admitted the procurement and issuance of the policy, but set up said provision to the effect that the policy should be void if obtained or held by persons crippled, maimed or deformed, and asserted the defense that plaintiff was maimed, crippled and deformed, in that one of his legs had been amputated and he was compelled to wear an artificial leg, so that the policy was at all times void and of no effect; that tender of the premium was made and same was paid into court for plaintiff's benefit; that the agent did not know insured, and did not know he was maimed, crippled or deformed, and had he known that fact, he would not have issued the policy.

The reply was a general denial.

Under the instructions offered by the plaintiff and given by the court, the jury returned a verdict for plaintiff in the full amount of the policy with interest thereon at six per cent from November 3, 1930, but assessed no penalty. Defendant appealed.

In the course of his testimony, in which all of the above facts appeared and are conceded, plaintiff testified:

That he was not acquainted with the station agent, and when he went into the depot to see him, the latter was behind the counter of the ticket window in the depot waiting-room; that there was a wooden ledge or counter outside the railroad ticket window, the counter being about three and one-half feet high and the ticket window about three feet wide. "I was on the outside and the agent was on the inside of the counter. I do not remember that there was a sort of iron grill constructed in this window and that they shoved the ticket out underneath." . . . "When the agent stands at the window it comes up a little above the thigh." . . . "I did not sign any paper or make any application."

At the close of the evidence in plaintiff's behalf, the defendant offered a demurrer; but this was overruled and, defendant introducting no evidence, the cause was submitted to the jury which returned the verdict hereinbefore stated.

The sole determinative question herein, it seems to me, is whether or not this case comes within the purview of our statute (Sec. 5732, R. S. Mo. 1929, 6 Mo. Stat. Ann., p. 4373) relative to misrepresentations made in obtaining or securing a policy of insurance. If that section is applicable, the case ought to be affirmed; if not, it should be reversed. As viewed by the author hereof, the case does not come within the purview of that section.

It is no doubt true that the said section was enacted to prevent insurance companies from preparing a policy or contract of insurance offering attractive features of indemnity, but, by questions to which answers were required having little or nothing to do with the liability involved arranging it so that upon the slightest incorrectness or deviation from the true facts by the insured in his answers thereto, a situation was created whereby indemnity could be successfully withheld regardless of whether the error or misrepresentation had anything to do with the event which matured the policy. That being the evil aimed at, of course, the courts have very properly set their faces like flint against any scheme or device to avoid coming within its purview, or to escape the effect of its provisions. For instance, although the statute says, "No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this State, shall be deemed material, or render the policy void, unless," the matters misrepresented shall have actually contributed to the contingency insured against, and whether it has or has not shall be a jury question, yet it is held that the section applies to that part of a life policy having to do only with accident indemnity features. Williams v. Mutual Life of Illinois, 283 S.W. 64; Makos v. Bankers' Acct. Ins. Co., 234 S.W. 369, which was a "life and health" insurance policy. The case of Burgess v. Pan-American Life Ins. Co., 230 S.W. 315, is apparently cited by plaintiff in support of the idea that even though there be no application to contain a misrepresentation yet as the policy itself contains a provision that "no liability would attach until it was duly delivered during the lifetime and good health of insured," nevertheless the section of the statute applied. We need not say whether this be true or not. For, in that case, like in the ones above cited and others, there was an application in which insured stated "that he...