Scott v. Missouri Ins. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Hughes
• Citation: Scott v. Missouri Ins. Co., 222 S.W.2d 549 (Mo. App. 1949)
• Decision Date: 21 June 1949
• Docket Number: No. 27617.,27617.
• Parties: SCOTT v. MISSOURI INS. CO.

222 S.W.2d 549

SCOTT v. MISSOURI INS. CO.

No. 27617.

St. Louis Court of Appeals. Missouri.

June 21, 1949.

Rehearing Denied September 16, 1949.

Appeal from St. Louis Circuit Court; David J. Murphy, Judge.

"Not to be reported in State Reports."

Suit by Alice Scott against Missouri Insurance Company to recover death benefit under industrial 25-year endowment policy. Verdict and judgment for plaintiff, and defendant appeals.

Judgment reversed and cause remanded for a new trial.

Jones, Hocker, Gladney & Grand, St. Louis, and James C. Jones, III, St. Louis, for appellant.

Henry D. Espy, St. Louis, for respondent.

HUGHES, Judge.

This is a suit on an industrial twenty-five year endowment insurance policy issued July 21, 1947, on the life of Gertrude Watts, for $500, and in which the plaintiff, Alice Scott, is named as beneficiary. The insured died on December 7, 1947. The defense was based on a good health provision and alleged misrepresentations wilfully made in the application for the policy, and a release executed by the beneficiary after the death of the insured.

The policy provided that it should not take effect if the insured die before the date thereof, or if on such date the insured be not in good health, but in either event the premiums paid thereon, if any, should be returned.

The application states, over the signature of the insured, that she had never had heart disease, and no medical or surgical attention in the last five years, and the following clause:

"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."

On the face of the application the following statement is signed by J. H. Weiler, Agent, who had procured the insured's application:

"I hereby certify that the above named applicant is a good sound healthy risk, free from the effects of any disease or injury, and is within the Company's age limit, also that the application was written by me in the presence of the applicant on the above date; Now, therefore, in consideration of the representations made to me and from my observation of the physical and mental condition of the applicant I hereby recommend that the Company issue the policy applied for."

On the reverse side of the application is an "Inspection Report" signed by J. H. Weiler, Inspector, which contains the following:

"1. Did you personally see applicant when application on reverse side was signed? Yes.

"2. What do you believe to be the age next birthday? 38.

"3. Race C.

"4. Are the home surroundings sanitary? Yes.

"5. Have you reason to suspect intemperate habits, or, if female, immoral life? No "6. Height and weight? 5 ft. 2 in. 148 lbs.

"7. Does applicant appear to be in good health? Yes.

"8. Is there any physical defect or infirmity? No.

"9. Has the applicant within the past 5 years had any serious illness or injury, spitting of blood, habitual cough, etc.? If yes, give date. No none.

"10. Has either parent or any brother or sister died of tuberculosis? No.

"11. Where did you personally examine the applicant? home.

"12. When? 10 Day 7 Mo. 47 Yr.

"13. Is the applicant in your opinion a First Class Risk for Life Insurance? Yes.

"14. Signature of party inspected, or, if too young to write, of person applying for Child's insurance. Gertrude Watts

"15. I certify that my answers to the above questions are true, and that the applicant signed in my presence. J. H. Weiler, Inspector."

Beneath this statement is a form for "Medical Examiner's Report," which is not filled out as no medical report was required by the company before issuing the policy.

Endorsed on the back of the policy is the following: "It is not necessary to employ anyone to present claim under this Policy. If a claim arises, communicate at once with your District Office."

A certified copy of the death record of the Bureau of Vital Statistics shows that Gertrude Watts died on December 7, 1947, at the hour of 8:20 p. m., and the immediate cause of death is stated to have been chronic myocarditis, chronic aortitis.

The release is on a stereotyped form with blank spaces for the policy number, the amount paid the beneficiary, the date, a line for the signature of the beneficiary, and two lines for signatures of witnesses, and as executed it is as follows:

"Release

"Whereas, claim has been made by the undersigned against the Missouri Insurance Company for certain death benefits provided for in Policy No. 2317555 issued by the Missouri Insurance Company: and

"Whereas, the Missouri Insurance Company claims and asserts that said policy was procured through certain misrepresentations made by the insured in his application for said policy concerning matters which caused or contributed to the alleged death of the insured and that as a consequence there is no liability under said policy for the payment of the death benefits provided for under said policy or otherwise; and

"Whereas, the undersigned has agreed to surrender said policy to the Missouri Insurance Company and release said Company from any and all claims thereunder:

"Now, therefore, and in consideration of the payment to the undersigned by the Missouri Insurance Company of the sum of $12.76, the receipt of which is hereby acknowledged, the undersigned does hereby surrender said policy to the Missouri Insurance Company for cancellation, and does hereby release, acquit and forever discharge the Missouri Insurance Company from any and all claims, demands, rights, or rights of action which the undersigned may have against the Missouri Insurance Company under or on account of said policy.

"In Witness Whereof, the undersigned has hereunto set his hand and seal this 17th day of Dec 1947.

           (Signed) Alice J. Scott
                                          "Beneficiary
                "Floyd English
                  "Witness
                "F. F. Suter
                  "Witness
                "Revised Form 142-500-8-45"
                

The premium receipt book shows the payment of weekly premiums from the date of the policy to and including the date of insured's death, aggregating $11.76.

So much for the documentary evidence. The oral testimony was in substance as follows:

Alice Scott, the plaintiff, testified that she was present when her mother signed the application for the policy; that the agent, Mr. Weiler, just gave her mother a sales talk, and filled out the application, and her mother signed it; that the agent did not ask her mother any questions whatsoever. She further testified that her mother had been in an automobile accident a week or two weeks before she died; that up to that time her mother was in good health and did her regular duties as a housekeeper; that after the accident she complained of headaches and sickness, but that she continued her work up to December 6th, the day before she died; that her mother took sick around 3:00 o'clock in the afternoon of December 7th, and was taken to the hospital where she died at 8:20 that evening.

The plaintiff, Alice Scott, further testified that after her mother's death she, in company with the undertaker, went to the office of the insurance company; that on that visit to the company office she did not have the policy, but she signed some papers which showed that her mother was dead and the man told her she would get her $500; that later she again went to the company office with the undertaker, and the superintendent then told her that her mother's insurance was not in full benefit, and hadn't been in there long enough to draw $500, and that all she could get out of the insurance was $12.76, which she had put in, and that she signed the release but did not read it.

Floyd English, the undertaker, testified that he went with Alice Scott to the company's office twice; that on the first visit she didn't have the policy, and Mr. Suter told her he would get a copy of the policy, and that he wouldn't know how much she would get until he got the policy; that on the second visit Mr. Suter told her it was a young policy and all he could give her were the premiums; that Mr. Suter said that in view of the cause of her mother's death all he could give her were the premiums; that they didn't pay for that cause of death unless it was an older policy; that if she was sick when the policy was issued she wasn't entitled to the insurance; that he (witness) told Mrs. Scott that if that's all she could get she might just as well take it.

Mildred Everett testified that she had known Gertrude Watts since 1940 and was in her home practically every day; that Mrs. Watts worked every day, and the thing witness knew about her general health was that she suffered from colds and indigestion; that witness was in the automobile with Mrs. Watts at the time of the accident on November 25th, and that "It affected her plenty."

Joe Wrothey testified that he lived in the insured's home from July to October, 1947, and that she was in good health and went to work every day.

Dr. James Willie Wilkerson, a witness for defendant, testified that he had treated Mrs. Watts for a gastric condition for ten or twelve years and for the last five or eight years she suffered from hypertension; that he would say that in the last five years he treated her ten times; that he had not treated Mrs. Watts for at least a year prior to the date of her death; that his last treatment was the day of her death, when she was suffering from a gastric condition, was vomiting and complained of severe pains in her abdomen; that her blood pressure the last time he saw her was 180/96; that in the last five or six years her blood pressure, when he measured it, was never under 160; that he always mentioned her high blood pressure to her; that she had an enlarged heart due to the hypertension; that the normal...