Schreiber v. Central Mut. Ins. Ass'n

• Decision Date: 05 October 1937
• Docket Number: No. 23863.,23863.
• Parties: SCHREIBER et al. v. CENTRAL MUT. INS. ASS'N.
• Court: Missouri Court of Appeals

108 S.W.2d 1052

SCHREIBER et al. v. CENTRAL MUT. INS. ASS'N.

No. 23863.

St. Louis Court of Appeals. Missouri.

October 5, 1937.

Rehearing Denied October 19, 1937.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Action by Bertha Schreiber and husband against the Central Mutual Insurance Association. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Irwin & Bushman and Harry L. Buchanan, all of Jefferson City, for appellant.

D. W. Breid and T. P. Hukriede, both of Union, for respondents.

HOSTETTER, Presiding Judge.

This suit was begun in the circuit court of Franklin county, on the 1st day of February, 1935, by the parents of Frank Schreiber, who were beneficiaries in a membership certificate of insurance issued on the life of their said son by defendant, which is a Missouri corporation engaged in the insurance business on the assessment plan. The face amount of the certificate was $1,000. The date of the issuance of the certificate was May 18, 1929, and the date of the death of the insured was October 28, 1934.

The petition was in conventional form and set out, inter alia, that after proof of death was furnished, defendant paid plaintiff $500 on said certificate, but failed and refused to pay the remaining $500, for which amount they prayed judgment.

Defendant in its answer admitted the issuance of the certificate of insurance, the death of the insured, and that it had paid $500 to plaintiffs as beneficiaries, but that the same was paid as a result of a compromise on account of the fraud and false statements of insured to the effect that he was at the time of the issuance of the certificate in good health and free from disease, whereas, he was afflicted with myocarditis, a heart disease which directly contributed to his death, and that such fraud and false representations of insured rendered the certificate void, and that defendant owed plaintiffs nothing, and to settle the controversy defendant paid plaintiffs $500 which they received in full settlement of said controversy and as a compromise, and there was an accord and satisfaction of the claim made by plaintiffs and that they executed a release in writing, it being a full release of all liability of defendant.

Plaintiffs in their reply admitted that they signed the written release on the payment of said $500, but averred that such release was wrongfully and fraudulently obtained from them by officers and agents of defendant by coercion, and by taking advantage of their financial needs, their old age and infirmities, and by fraudulently telling plaintiff that, unless they signed the release, the defendant would not negotiate with them further, and would not pay them anything, and that there was no ground for the claim of defendant that there was a question as to whether or not it was indebted to them on the certificate sued on, and that such officers and agents of defendant fraudulently stated to plaintiffs that insured was not a member in good standing in defendant's association, in that he had misrepresented his condition at the time he made application; and that defendant's agents and representatives knew that plaintiffs were in financial want and need, old and infirm, and without business knowledge and experience, and coerced them into signing said release by fraudulently stating that unless they signed it immediately, defendant would not negotiate further and would not pay plaintiffs anything whatever.

They denied that there were any grounds for a controversy as to defendant's liability to plaintiffs on said membership certificate, or as to whether or not said certificate was of any force or value, and urged that defendant's officers and agents well knew at the time that there was no grounds on which a real controversy could rest.

The case was tried to a jury, with the result that a verdict was returned in favor of plaintiffs in the sum of $500, upon which judgment was rendered, and, after an ineffective motion for a new trial, defendant brings the cause to this court by appeal for review.

It was shown by the testimony of Mrs. Eli Muench, daughter of plaintiffs, that, whereas insured died on October 28, the defendant sent out an assessment notice on November 1, which was due on December 1, and that such assessment was paid by her on behalf of deceased, and defendant accepted it.

It was further shown by this witness that Dr. Wm. B. Dallas, president of defendant association, called at her home, where her parents live, on January 17, 1935, and, after talking about the weather, and his trip, etc., she asked him about the insurance he was supposed to pay in sixty days, and he replied that he didn't think he owed her father and mother anything. Then the following occurred:

"Q. Just repeat this whole conversation between Dr. Dallas and your mother and father — if he was present — and you. A. And then he said, `You know your brother had myocarditis.' And I didn't understand the medical name, and I says, `What did you say?' He says, `That is heart trouble. I am a doctor.' And he says, `I know what that is.' And he says, `I have a written statement from Dr. Duckworth that your brother had myocarditis in 1927.' I said, `We knew nothing of it.' I said, `My brother died of pneumonia.' Well, he says, `You folks haven't anything coming.' I said, `Well, what do you really expect to do?' He says, `Well, you will have to take the $500.00 or not take anything.' He says, `You are not entitled to anything.'

"Q. Well, did your father or mother say anything to him? A. Well, we got into a mix-up from 3 o'clock to about 7 o'clock over it.

"Q. Well, did they sign any papers in your presence? A. Yes, sir; that evening, because he threatened he would go back to Jefferson City. He told them they wouldn't get any more than what was paid in, if he would go back to Jefferson City. That is when they signed; he told them that several times though, just what had been paid in, that is all they would get. That was when the policy was given to him — that evening; but he didn't let me see any of the policies or the write-ups that he had at all.

"Q. Did he make any other statements there concerning why he didn't think the company would pay? A. Well, just due to the fact that he had heart trouble. He said that he had a written statement from Dr. Duckworth."

Bertha Schreiber, one of the plaintiffs, testified that her son Frank Schreiber died on October 28, 1934, in his forty-fourth year; that Dr. Dallas came to their home some time in January, 1935, and was talking to her daughter when she came in and he said they (meaning plaintiffs) "wasn't entitled to anything"; that her daughter kept arguing with him, and he said they "wasn't entitled to anything," and she said, "Do you mean to tell me we are not entitled to anything?" "Well, no," he said, "your brother had heart trouble." That he said, "I will tell you, I am a Christian, I will give you $500.00." But that he said, "You are not entitled to that." That they argued quite awhile with him, they didn't want to accept it; that he said, "We have several letters to show from Union, if we paid this claim those parties would drop out"; and that she said, before he said that he was a Christian, "Dr. Dallas, you say you are a Christian, now please tell me whoever those parties are." "No," he said, "We can't do that." She further testified:

"Q. Well, you did sign a paper? A. Yes, sir.

"Q. And what was said just prior to the time you signed the paper? A. Well, he just asked us whether we would take the $500, that if he left the house we wouldn't get anything, that we wasn't entitled to anything.

"Q. Did he start to leave before you signed? A. No — he got up — yes, he did, he kept arguing."

On cross-examination she admitted that she signed the release and identified her signature to it, but did not read it and didn't remember whether she asked him to read it to her as she was excited.

She further testified that she never knew or thought her son, Frank, had heart trouble; that she knew he consulted physicians when he took sick on May 2, 1934, but did not know of him consulting physicians at any other times.

William Schreiber, one of the plaintiffs, testified substantially as follows: "Frank Schreiber was a son of mine. I was present in the home in January of this year, at the time Dr. Dallas was there; I was in the back part of the house. I had just a little conversation with him, not much. I was present when my wife and daughter were talking with him. I heard that conversation. Dr. Dallas got there along about three o'clock in the afternoon, I believe. I first came into the part of the house that he was in about half-past three, something like that. I didn't have any conversation with Dr. Dallas myself. The conversation was between him and my wife and daughter. * * * Well, all he was talking about, he said if he left the house we wouldn't get a cent, and he wanted to give us a present, if we would take that, but wasn't entitled to it." He admitted signing the release paper for Dr. Dallas and the payment of $500 by the latter. In response to a question as to what he heard Dr. Dallas say, if he didn't sign, he testified as follows: "He says, `If I go out of this house, you won't get a penny, you won't get nothing.'" He further testified that he didn't know that Frank was sick in 1929; that he worked every day; that Dr. Dallas said Dr. Duckworth had told him that Frank had heart trouble in 1927.

On cross-examination he admitted his signature to the release, and said it was not read to him and that he did not read it himself; that Dr. Dallas having stayed there from 3 o'clock in the afternoon until 7, was in a hurry to get away after the release was signed; that Dr. Denny was his son's physician in his last illness; that he did not tell Dr. Denny that his son had heart trouble; that Dr. Denny said he had liver trouble, but didn't tell him that he had heart...