Schwartz v. National Acc. Soc.
| Decision Date | 02 December 1924 |
| Docket Number | No. 18598.,18598. |
| Citation | 267 S.W. 87 |
| Parties | SCHWARTZ v. NATIONAL ACC. SOC. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court, Benjamin J. Klene, Judge.
Action by Elice Schwartz against the National Accident Society. Judgment for plaintiff, and defendant appeals. Affirmed.
Hudson & Hudson, of St. Louis, for appellant.
Max Sigoloff, of St. Louis, for respondent.
Plaintiff brought her action before a justice of the peace in the city of St. Louis upon a policy of health and accident insurance issued to her by the defendant company. Upon a trial of the case de novo on appeal in the circuit court a verdict was returned for plaintiff for the amount alleged in plaintiff's petition to be due under the policy; namely, $175 plus interest amounting to $12.25 and attorney's fees of $75, the total verdict aggregating $262.25. From the resulting judgment, the defendant appeals.
Plaintiff's petition alleges that on December 12, 1920, in consideration of the statements in plaintiff's application, and of a premium of $10 paid by her, the defendant company issued and delivered to her its policy of health and accident insurance for the term of one year; that on August 3, 1921, while the policy was in full force and effect, plaintiff, while walking on a sidewalk of a public street in the city of St. Louis, was kicked by a horse that was tied to a telegraph pole; that plaintiff thereby suffered injuries which confined her to her bed for a period of 7 weeks; that under the terms of the policy a weekly indemnity of $25 per week for a period not to exceed 7 weeks is provided in the event the insured meets with injuries as the result of being kicked by a horse or gored by a bull or cow, provided such injuries shall from the date of the accident continuously and wholly prevent the insured from attending to any and every kind of business; that due notice of said injuries and the cause thereof was furnished to said defendant, and that plaintiff demanded $175 of said defendant, being the amount due plaintiff under the terms of the policy of insurance in question, but that defendant vexatiously refused to pay plaintiff, and still refuses to pay said sum or any part thereof, and plaintiff prayed judgment for $175, together with interest thereon from the 28th day of December, 1921, and 10 per cent. damages thereon and a reasonable attorney's fee for the prosecution of her suit for the said defendant's vexatious refusel to pay plaintiff said loss, and costs.
The defendant's answer admitted the issuance to plaintiff of its policy of health and accident insurance as stated in plaintiff's petition, and set up four special defenses: First, that the plaintiff had made false and fraudulent warranties in her application for the policy in question in that she stated she had no other health or accident insurance, when in fact plaintiff knew that she was insured in the North American Accident Insurance Company and in another company, the name of which was unknown to the defendant; second, that if plaintiff sustained any injuries they were not sufficient to prevent her from wholly attending to any and every kind of business, nor did they confine her to her home at any time; third, that, under the provisions of the policy with reference to insurance carried by the insured in any other company than the defendant, the defendant is liable only for such portion of the indemnity promised as the said indemnity bears to the total amount of like indemnity in all policies covering such loss, and that therefore the defendant, if liable at all under its policy of insurance, the plaintiff having two other policies in two other companies, is liable only for $8.33 per week, instead of $25 per week; fourth, that under the terms of the policy the defendant "shall have the right and opportunity to examine the person of the insurer when and so often as may be reasonably required during the pendency of the claim hereunder," that such provision is a condition precedent to the payment of any disability claim, and that plaintiff refused the defendant the right to examine her as provided by said terms of the said policy.
Plaintiff adduced evidence which, if believed by the jury, warranted a verdict in plaintiff's favor for the full amount of her claim of $175 and interest as prayed in her petition. Though we have read the record before us carefully we have not found any testimony adduced on behalf of the defendant in support of the charge in its answer that the plaintiff made fraudulent and false warranties and representations in her application for the policy, or that the plaintiff carried any other insurance than the policy in question.
As to the defense that the plaintiff's injuries, if any, were not sufficient to prevent her from wholly attending to any and every kind of business, a witness for the defendant, Nelson by name, testified that he was employed as a special investigator by the defendant, and that he called at plaintiff's home two weeks after the date on which plaintiff alleges she had been kicked, and found plaintiff with a broom in her hand sweeping up crumbs around the floor near the table; that upon his telling her the object of his visit plaintiff immediately went to the bed, sat down on it, and complained about her ills, and that three days thereafter when he made another call he found plaintiff sitting on her door step, and that when plaintiff saw him she went into her home, and when he entered the house he found her in bed.
About 15 days after plaintiff suffered her accident Dr. Glasscock, a witness for defendant, testified that he went to plaintiff's house, where he met by previous arrangement Dr. Pasceutia, the plaintiff's attending physician. Dr. Glasscock on direct examination, when asked what objective symptoms he discovered during his examination of the plaintiff, answered:
Dr....
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