Sappington v. Cent. Mut. Ins. Assn.
| Decision Date | 13 November 1934 |
| Docket Number | No. 18055.,18055. |
| Citation | 77 S.W.2d 140 |
| Parties | HENRY B. SAPPINGTON, APPELLANT, v. CENTRAL MUTUAL INSURANCE ASSN., RESPONDENT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Moniteau County. — Hon. Nike G. Sevier, Judge.
REVERSED AND REMANDED.
Randolph & Randolph, Nile G. Vermillion and J.B. Gallagher for appellant.
Embry & Embry and Irwin & Bushman for respondent.
This suit was instituted in the Circuit Court of Moniteau County and is a suit by plaintiff upon an insurance certificate issued by defendant upon the life of Elizabeth A. Sappington, wife of the plaintiff, dated December 3, 1925, in the sum of $1000, in which the plaintiff was made beneficiary. The plaintiff seeks to recover judgment for the sum of $500, an alleged balance due under said certificate.
The petition is in the usual form and sufficiently sets forth a cause of action for said balance and prays judgment therefor with interest.
The defendant, answering, admitted its corporate organization and that it was engaged in writing insurance on the assessment plan in Missouri; admitted the issuance of the certificate sued upon, the death of the insured on August 2, 1932, the named beneficiary in said certificate to be the plaintiff; and denied each and every other allegation of the petition. It tendered two affirmative defenses: (1) that the certificate was secured by misrepresentation and fraud and was, on account thereof, null and void from the beginning; (2) that the defendant had compromised the claim sued upon, by the payment of the sum of $500 thereon as an accord and satisfaction of said claim and that, by reason thereof, the plaintiff is not entitled to recover.
To the defendant's answer, plaintiff filed a reply denying all allegations of new matter therein and attacked the accord and satisfaction, compromise and release, set up in the answer, as void because it was not based upon a bona fide dispute existing between plaintiff and defendant with respect to the cause of the insured's death and was not supported by a sufficient consideration.
On the trial, the plaintiff introduced the certificate sued upon and introduced the evidence of two witnesses, one of whom was the plaintiff himself and the other of whom was Dr. Latham, who attended the insured at the time of her death as her physician.
It appears, from the record, that the certificate sued upon was issued upon a written application therefor signed by the insured, dated November 22, 1925. Such application appears in the record as defendant's Exhibit 3, being introduced as a part of plaintiff's cross-examination, and is as follows:
It appears that one Jones, an agent of the defendant, took and filled out said application, calling on plaintiff and his wife in their home for that purpose. It was testified by plaintiff, that he, the agent, asked the insured just three questions, — her name and age and the name of the beneficiary — that he did not ask her any questions about her health; that he told the insured that no physical examination was necessary and that the defendant would accept anyone under the age of fifty years. Plaintiff testified that the agent filled out the application blank in every detail and asked the insured and plaintiff to sign it, which they did without reading it, and that it was signed by both himself and the insured without having been read to either of them. The application being exhibited to the witness, he was asked in whose handwriting the signature Elizabeth A. Sappington appeared; and he answered, "My wife's;" and to the question, "Whose handwriting is `Henry B. Sappington' in?" he answered, "Mine." In answer to the question, "Whose handwriting is all of the rest of the writing on here?" he answered, "The agent's; J.I. Jones I think it is." In answer to the question, "Did your wife make the statement to him that she did not have kidney trouble?" he answered, "He didn't ask any questions at all about the condition of her health." To the question, "The answers that are shown to the various questions at the top of the four columns — did she make any of those answers in that way?" he answered, "None at all; the agent made them all himself."
The witness also testified that, at the time the application was made, the insured's health was considered good — in substance, that she was doing the general housework, such as cooking, sewing for the children, washing, taking care of the milk, churning, and taking care of the chickens —; that the family was comprised of seven (himself, his wife, and five children); that she continued in such state of health until sometime after she took out the certificate, until about June, 1927.
The evidence further tended to show that, in 1921 and 1922, the insured had suffered from a floating kidney, which thereafter became imbedded in fat and caused no more trouble. In 1927, she was operated on for gall stones. In February, 1932, she was treated by Dr. Latham for trouble caused by the friction of wearing a support for too long a time. In July, 1932, Dr. Latham treated the insured for ptomaine or food poisoning. He caused her to be taken to a hospital where he treated her until she died, August 2, 1932. The poisoning developed into colitis and diarrhea, which caused her death. She could not control her bowels.
About August 5, 1932, soon after the death of the insured, plaintiff, by letter, notified the defendant of the death of the insured. Defendant, by letter, acknowledged the receipt of the notice and advised plaintiff that his claim would be handled in the regular manner. Later, at the request of the defendant, plaintiff called upon the defendant at its office in Jefferson City, Missouri, with reference to his claim under the certificate. On this occasion, he was informed by Dr. Dallas, representing the defendant, that defendant had a letter indicating that the insured had misrepresented the condition of her health at the time the certificate was issued. It was explained to Dr. Dallas by plaintiff that the agent who took the application had made no inquiry about her health and that the only previous trouble she had suffered was from a floating kidney which had become imbedded in fat and caused no more trouble.
Later, about September 16, 1932, plaintiff again visited defendant's office at the request of defendant. While he was there upon this occasion, Dr. Dallas stated to plaintiff, "— we decided to reject your claim —," but later said to him, "— now, being as your wife carried this policy seven years we decided to give you five hundred dollars," which offer plaintiff, at the time, declined and returned to his home.
Later, September 19, 1932, he wrote defendant stating that he had decided to accept the offer of $500.
On September 20, 1932, a representative of the defendant...
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