Scott v. Missouri Ins. Co.
| Decision Date | 19 February 1952 |
| Docket Number | No. 28350,28350 |
| Citation | 246 S.W.2d 349 |
| Parties | SCOTT v. MISSOURI INS. CO. |
| Court | Missouri Court of Appeals |
Jones, Hocker, Gladney & Grand, and James C. Jones, Jr., all of St. Louis, for appellant.
Henry D. Espy, of St. Louis, for respondent.
Action by plaintiff (respondent) to recover upon an industrial insurance policy for $500 admittedly issued by defendant (appellant) on the life of Gertrude Watts and in which the plaintiff, daughter of insured, is named as beneficiary.
The case has a rather extended history. Originating in Magistrate Court it came to the Circuit Court upon appeal by defendant after an adverse judgment. A trial there resulted in a judgment for plaintiff in the sum of $499.44. This court, upon defendant's appeal from that judgment, decided that the cause should be reversed and remanded for a new trial on account of error in giving certain instructions at the request of plaintiff. Scott v. Missouri Insurance Company, Mo.App., 222 S.W.2d 549. Defendant, not being satisfied with a partial victory, sought and obtained a transfer to the Supreme Court because of rulings adverse to it upon other assignments of error. That court, in due time, issued its opinion holding that the instructions were erroneous and further ruled that a certain investigation report, hereafter discussed, should have been admitted in evidence when offered by the defendant and the cause was reversed and remanded for a new trial. Scott v. Missouri Insurance Company, 361 Mo. 51, 233 S.W.2d 660.
Upon a re-trial of the cause plaintiff obtained a verdict and judgment in the aggregate amount of $1391.50, being a recovery of $592.78 as the amount due, with interest, on the policy, $48.72 damages and $750 attorney fees for the vexations refusal of defendant to pay said loss.
Plaintiff's petition was in conventional form, alleging issuance of the policy on July 21, 1947, the subsequent death of the insured on December 7, 1947, and the vexatious refusal of the defendant to pay the amount due the beneficiary. The defense was based on (1) a good health provision of the policy; (2) that in her application the insured knowingly made false representations that she had never been treated for heart disease and had not received any medical attention during the preceding five years and (3) that after the death of insured the controversy between plaintiff and defendant as to defendant's liability was settled for the sum of $12.76, in consideration for the payment of which plaintiff signed and delivered to defendant a release of all claims under the policy. Plaintiff's reply to defendant's answer was a general denial.
The policy contained a provision that it should not take effect if the insured die before the date thereof, or if on such date the insured was not in good health, but in either event the premiums paid thereon, if any, should be returned.
The application, dated July 10, 1947, and duly signed by insured, contained statements that she had never had heart disease and had received no medical attention in the last five years. It further included the following provision:
'I hereby apply for the above mentioned Policy with the Missouri Insurance Company, St. Louis, Missouri, and declare that the statements recorded above and on the reverse side hereof are true and complete and I agree that any misrepresentation wilfully made shall render the Policy void and that the Policy shall not be binding upon the Company unless upon its date I shall be alive and in sound health.'
In addition to the application defendant offered in evidence a certified copy of the certificate of death, which recited that the immediate cause of insured's death was 'chronic myocarditis, chronic aortitis;' the premium receipt book showing that premiums totaling $11.76 had been paid on the policy; the release pleaded as a defense, and plaintiff's signed statement, dated December 12, 1947, in which she purports to state that her mother was ill of indigestion in February, 1947, and was treated by Dr. Clark and in June thereafter was treated by Dr. Schucat for high blood pressure.
It appears that after plaintiff made claim for the proceeds of the policy the defendant ordered and received an inspection report from the Retail Credit Company. This report, dated December 15, 1947, sets forth that Gertrude Watts died suddenly on December 7, 1947, of chronic myocarditis and aortitis, and that for over a year she had suffered from hypertension and had been treated for same by Dr. William Clark and Dr. James W. Wilkerson, who had reported that she had a blood pressure of 200/100; that Alice Scott (plaintiff) had been interviewed and stated that her mother had several prior attacks which she described as indigestion, but that the doctors had never diagnosed her illness as a heart condition, but both Dr. Clark and Dr. Schucat had advised insured that she had high blood pressure. The written statement of plaintiff heretofore referred to was copied into the report. The report further disclosed that records at the hospital where insured died indicated that she had given a history of being treated for high blood pressure since the past summer and had been complaining of shortness of breath, headaches and dizziness during the past several months. The report gave information that Dr. Clark had treated insured three times in February of 1947 for la grippe at which time her blood pressure was 200/100, and had treated her in June of said year for injuries sustained in a fall. Dr. Wilkerson was reported as stating that he had known insured 10 to 15 years, had treated her about a year before for high blood pressure and gastritis, and Dr. Schucat indicated that in the spring of 1947 Mrs. Watts had a blood pressure of 200/100, which he thought was the cause of the chronic myocarditis and aortitis. In the first trial this exhibit was offered, but excluded on the ground that it was hearsay. The Supreme Court at page 665 of 233 S.W.2d in its opinion, supra, in reviewing this assignment of error, held that the report, though hearsay, was admissible 'on the issue of whether there was consideration for the release, that is, whether or not there was a genuine good faith dispute as to liability and whether the facts and evidence in defendant's possession would have caused a reasonable person in good faith to believe that there was no liability to plaintiff on the policy.' In compliance with this ruling the report was admitted in evidence, without objection, in the trial now under consideration.
Dr. Wilkerson testified for the defendant to the effect that he had known Mrs. Watts for about 20 years; that during the last five years of her life he had treated her 15 or 20 times, generally for gastritis, but that during all of that time she had high blood pressure. The last time he treated her was on the date of her death, but had not seen her for about a year prior thereto; that her heart was enlarged and she had hypertensive heart disease during this five year period; that this condition would lead to chronic myocarditis, and that hypertensive heart disease accompanied by high blood pressure and enlarged heart cannot be cured.
An autopsy was made by Dr. Martin J. Glaser for the coroner's office, who testified that it showed the cause of death was chronic myocarditis and chronic aortitis and that there were many old scars in the heart muscle which would indicate a chronic heart condition.
Defendant's claim manager testified that after plaintiff made her claim he obtained the aforementioned retail credit report and thereafter when plaintiff returned to the office he refunded to her the premiums paid plus $1 and obtained a release. He stated that he may not have mentioned to plaintiff that he was paying her anything in addition to the amount of the premiums.
The testimony of plaintiff was that Dr. Wilkerson attended the insured on the date of her death and that his last previous treatment of her was in June, 1946, for an attack of indigestion; that Dr. Clark had treated the insured for colds. She denied any knowledge that her mother had suffered from high blood pressure or was ever confined to bed by illness and further denied all knowledge of the contents of the statement she signed on December 12, 1947. Her testimony revealed that her mother had been injured in an automobile accident on November 25, 1947, but had been able to work every day thereafter and seemed all right; that on December 8, 1947, she went to the office of the defendant and gave the claim manager, Mr. Suter, the premium receipt book and he told her to sign some papers and he would give her the $500; that she signed the papers and later went back to the office, at which time he told her that the policy was a young policy and all he could give her was $12.76, the premiums paid by her mother; that he paid the money in cash and she signed some papers but did not read them.
Mildred Everett testified for plaintiff that she had been intimately associated with the insured for seven years before her death and had never known her to be ill except with indigestion or colds.
At the outset, defendant contends that the court erred in overruling its motion for judgment in accordance with its motion for a directed verdict, because the evidence shows as a matter of law that at the time of the execution of the release defendant's claim adjuster was acting upon information which established that there was a bona fide dispute as to liability and therefore the release was valid and binding upon the plaintiff.
The policy provided for a return of the premiums paid if the insured was not in good health on the date thereof. The testimony of defendant's claim manager indicates that on the date the release was signed he told plaintiff she was entitled to a return of the premiums. Further, the defendant was required by law to pay the amount of the premiums into...
To continue reading
Request your trial
-
Hammontree v. Central Mut. Ins. Co.
...277 Mo. 399, 210 S.W. 37, 43(11); Aufrichtig v. Columbian Nat. Life Ins. Co., 298 Mo. 1, 249 S.W. 912, 916-917(9); Scott v. Missouri Ins. Co., Mo.App., 246 S.W.2d 349, 355(15).12 Howard v. Aetna Life Ins. Co., 350 Mo. 17, 164 S.W.2d 360, 366(9); Ireland v. Manufacturers & Merchants Ind. Co.......
-
Willis v. American Nat. Life Ins. Co.
...Life Ins. Co. v. Siebert, 8 Cir., 72 F.2d 6.3 Howard v. Aetna Life Ins. Co., 350 Mo. 17, 164 S.W.2d 360, 366; Scott v. Missouri Ins. Co., Mo.App., 246 S.W.2d 349; Young v. New York Life Ins. Co., Mo.App., 221 S.W.2d 843; but see Tabor v. Ford, Mo.App., 240 S.W.2d 737, loc. cit. 740.4 Priest......
-
Keaton v. Good
...Mo., 329 S.W.2d 2(6).8 If so, the addition of the little word 'such' could be a damaging excess of wordage.9 Scott v. Missouri Insurance Co., Mo.App., 246 S.W.2d 349, 354(4); Sollars v. Atchison, Topeka & Santa Fe R. Co., 239 Mo.App. 410, 187 S.W.2d 513, 518(3); Macklin v. Fogel Const. Co.,......
-
Matthews v. Truxan Parts, Inc.
...the court will look upon the pleadings as having been amended and will consider that the fact has been pleaded. Scott v. Missouri Ins. Co., Mo.App., 246 S.W.2d 349; Schroeder v. Zykan, supra, 255 S.W.2d at page 112; Rogers v. Crown Coach Co., Mo.App., 68 S.W.2d 729; Payne v. White, Mo.App.,......