Roberts v. Woodmen Accident Co.
| Decision Date | 06 March 1939 |
| Docket Number | No. 19365.,19365. |
| Citation | 129 S.W.2d 1053 |
| Parties | MAUDE M. ROBERTS, RESPONDENT, v. WOODMEN ACCIDENT COMPANY, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County. — Hon. Brown Harris, Judge.
AFFIRMED.
Milton Schwind for appellant.
(1) At the conclusion of plaintiff's testimony and at the close of all the testimony, the allegation of mental incapacity or insanity in the reply was wholly unproven. The remaining allegations can in no event be construed to be more than a claim of fraud in the treaty and, under the pleadings and proof, plaintiff had no cause of action without proof of tender, and demurrer should have been sustained. (a) In such case the rule required tender before the statute, sec. 782, R.S. Mo. 1929, and the rule has not been changed by statute. Robinson v. Siple, 129 Mo. 208, 31 S.W. 786, 791; Lomax v. Southwestern Mo. Elec. Co., 119 Mo. App. 192, 95 S.W. 945; Althoff v. St. Louis Trans. Co., 204 Mo. 166, 102 S.W. 642, 643. Except for the allegation of mental incapacity or insanity in the reply, defendant would have been entitled to a judgment on the pleadings. The demurrer to the evidence should have been sustained. Boehm v. American Patriots, 172 Mo. App. 104, 154 S.W. 448; Carroll v. United Rys. Co., 157 Mo. App. 247, 137 S.W. 303; Bird v. Rowell, 180 Mo. App. 421, 167 S.W. 1175; Kelley v. United Mut. etc. (Mo. App.), 112 S.W. (2d) l.c. 933. At the conclusion of the plaintiff's case and of the trial, there was no evidence to support the plea of insanity in the reply and this was a question of law for the court raised by the defendant's demurrer. Och v. M.K. & T. Ry. Co., 130 Mo. 27 l.c. 74; Kelley v. United Mut. L.I. Co., supra. To resist the suit is not a waiver of no tender. Carroll v. United Rys. Co., supra. (b) At the conclusion of the testimony, it appeared that the admitted release was supported by a valid consideration. There was a bona fide dispute not tainted with any fraud. Lynn v. Business Men's Assurance Co. (Mo. App.), 111 S.W. (2d) 231, 237; State ex rel. Order, etc., v. Shain (Mo. App.), 98 S.W. (2d) 597, l.c. 600, 601; Wood v. Kansas City Home Tel. Co., 223 Mo. 537, 123 S.W. 6 l.c. 15; McCoy v. McMahon (Mo.), 216 S.W. 770, 771; Christiansen v. Metropolitan Life Ins. Co. (Mo. App.), 102 S.W. (2d) 682. Consideration is present if there were facts on which defendant might reasonably deny liability. The presumption is that a contract fair on its face is valid. The contract excepted the risk of death resulting directly or indirectly, in whole or in part, from disease, and all the testimony, documentary and oral, showed the connection of the disease with the death. Castens v. Supreme Lodge, 194 Mo. App. 57, 175 S.W. 264, 266. As a matter of law the defendant was warranted in believing there was no liability. Sheppard v. Travellers' etc. (Mo. App.), 104 S.W. (2d) 784, 787. There was no issue of fact raised by the evidence whether there was ground for believing there was no liability. Wendorff v. Missouri State Life Ins. Co., 316 Mo. 363, 1 S.W. (2d) 99, 101. The right was disputed on grounds reasonably raising doubt, and then it is the doubt and not the reality of the cause of death which supplies the consideration for the contract of compromise. State ex rel. Order, etc., v. Shain, supra; Putnam v. Boyer, 173 Mo. App. 394, 158 S.W. 861, 862; Wood v. Kansas City Home Tel. Co., supra, 123 S.W. 15. This is not a case where there was a fixed liability and where the defendant is seeking to discharge the whole liability by payment of a lesser sum. The following case recognizes this distinction. There was ground for disputing plaintiff's claim. Putnam v. Boyer, supra; Crowder v. Continental Gas Co., 115 Mo. App. 535, 91 S.W. 1016; Biddlecom v. General Accident Co., 167 Mo. App. 581, 152 S.W. 103. (c) The plea in the reply is insufficient as a plea of fraud. 26 C.J. 1062, sec. 6, et seq. The relation between the parties was not that which under some circumstances make positive statements of law fraudulent. 26 C.J. 1207; Carrol v. United Rys. Co., supra, 137 S.W. 309. (d) Because of the evident connection of the disease with the death, defendant, under the contract, was entitled to a directed verdict. The contract of insurance was free from ambiguity. Banta v. Continental Casualty Co., 134 Mo. App. 266, 113 S.W. 1140, 1141; Christiansen v. Metropolitan Life, etc., supra. (2) There was error in the instruction on behalf of plaintiff. (a) Instructions 1 and 2 were erroneous in submitting to the jury the legal question whether the death of the deceased was accidental within the meaning of the policy in question. Bollmeyer v. Eagle Mill, etc., (Mo. App.), 206 S.W. 917, 919; City of Weston ex rel. Malay v. Chastain (Mo. App.), 234 S.W. 350, 352; Cooper v. Railroad Co., 123 Mo. App. 141, 100 S.W. 494, 496. (b) Under the issues made by the pleadings, if the case was submissable, the issue whether the admitted release was not binding had to be incorporated in each of plaintiff's instructions which purport to cover the whole case. Instructions 1, 2, 4, 5 and 7 on behalf of plaintiff each is erroneous as contravening this rule. Each instruction covering the whole case and directing a verdict for plaintiff must, under the rule, hypothesize the essential facts to be found. Cassin v. Lusk, 277 Mo. 663, 210 S.W. 902 l.c. 905; Cooney v. Pryor (Mo. App.), 905, 203 S.W. 630; Mitchell v. Wabash Ry. Co. (Mo.), 69 S.W. (2d) 290. (c) It was error to instruct that the jury might find the release void for fraud and duress. There was neither plea nor evidence of duress. Duress is a technical term and should be defined in accordance with the definitive law. Wood v. Home Tel. Co., supra; Thompson v. Bucholz, 107 Mo. App. 121, 81 S.W. 490, 491; State ex rel. v. Shain, supra. (d) All of the severable elements of actionable fraud must be formulated in terms of the evidence and understandably defined to the jury. 26 C.J. 1062. (e) The omission of any element is fatal. Foster v. Blanchard (Mo. App.), 204 S.W. 829, 830; Jobes v. Wilson, 140 Mo. App. 281, 124 S.W. 548; Adams v. Barber, 157 Mo. App. 370, 139 S.W. 489, 496; Thompson v. Bucholtz, 107 Mo. App. 121, 81 S.W. 490, 491. (f) For plaintiff the jury were instructed that if the death was caused by the fall, the disease was immaterial, if the death occurred when it did occur and except for the fall would not have occurred then. For defendant the jury were told (after demurrer overruled) that there could be no recovery if death resulted in whole or in part, directly or indirectly from disease. Christiansen v. Metropolitan Life Ins. Co. (Mo. App.), 102 S.W. (2d) 682. Independently of all other errors, the inconsistency is fatal under the rule. Modisett v. McPike, 74 Mo. 648; McCoy v. Hill, 296 Mo. 135, 246 S.W. 582, 586; Crews v. Wilson, 312 Mo. 643, 281 S.W. 44.
Dean Frazier for respondent.
(1) Tender was not necessary in view of the evidence that there was not a bona fide dispute. Therefore, payment made by appellant on purported release was merely a part payment on respondent's claim. Yancey v. Central Mut. Ins. Assn., 77 S.W. (2d) 149; Biddlecom v. The General Acc. Assur. Corp., 152 S.W. 103; Berry v. Detroit Cas. Co., 300 S.W. 1026. (2) There could not have been a bona fide dispute between the parties under the evidence offered. Fetter et al. v. Fid. & Cas. Co. of New York, 73 S.W. 592; Wheeler v. Fid. & Cas. Co. of New York, 251 S.W. 924; Yancey v. Central Mut. Ins. Assn., supra; Biddlecom v. General Acc. Assur. Corp., supra; Schepman v. Mutual Benefit Health & Accident Assn., 104 S.W. (2d) 777; Schreiber et al. v. Central Mut. Ins. Assn., 108 S.W. (2d) 1052; Friedman v. State Mut. Life Assur. Co. of Worcester, Mass., 108 S.W. (2d) 156; Rieger v. Mutual Life Ins. Co. of New York, 110 S.W. (2d) 878. (3) There was no error in instruction on behalf of plaintiff Instructions must be construed as a whole. State ex rel. State Highway Comm. of Mo. v. Hartman et al., 44 S.W. (2d) 169; Wheeler v. Mo. Pac. Ry. Co., 18 S.W. (2d) 494. (4) Respondent's instructions were correct, and even though construed to be inconsistent with appellant's instructions. Appellant is not in position to complain. McGee v. St. Joseph Ry. Co., 93 S.W. (2d) 1111; Williams et al. v. Excavating & Foundation Co., 93 S.W. (2d) 123; Yontz v. Shernaman, 94 S.W. (2d) 917; Yancey v. Central Mut. Ins. Assn., supra; Rieger v. Mutual Life Ins. Co. of N.Y., supra.
Mrs. Roberts, plaintiff below, was beneficiary in an accident insurance policy issued by Woodmen Accident Company, defendant below, on the life of her husband, now deceased. Suit was for the death benefit. Judgment was for plaintiff and defendant appeals. The parties will be referred to herein as plaintiff and defendant.
Insured had suffered for two years prior to his death from an enlarged spleen, which ailment grew progressively worse. The spleen is an organ about two and one-half inches wide by three inches long, inclosed in a covering or capsule. It lies in the upper left quadrant of the abdomen. It had increased to a size sufficient to fill a two gallon bucket on May 19, 1937, and could be felt from an external examination. Fluid had been forming in insured's abdomen for many months prior to his death. It was necessary to drain the fluid every few days, just prior to the injury complained of, and quantities ranging up to six quarts would thus be removed. His condition was such that, inevitably, he would have died from disease in the course of weeks or months, probably within one year from the date that he did die; but he would not have died at the time and in the manner he did die but for an accidental injury hereinafter described.
On the evening of May 19, 1937, insured accidentally fell in his room and struck his left side and abdomen on a table leg, causing a slight indentation on his body, which place was red. The blow ruptured a blood vessel inside the capsule of the spleen...
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