Sells v. Fireside Life Ass'n

• Decision Date: 18 December 1933
• Docket Number: No. 5265.,5265.
• Parties: SELLS v. FIRESIDE LIFE ASS'N.
• Court: Missouri Court of Appeals

66 S.W.2d 955

SELLS v. FIRESIDE LIFE ASS'N.

No. 5265.

Springfield Court of Appeals. Missouri.

December 18, 1933.

Rehearing Denied January 10, 1934.

Appeal from Circuit Court, Stoddard County; John A. McAnally, Judge.

"Not to be published in State Reports."

Suit by Hazel Sells against the Fireside Life Association. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

John T. Woodruff, of Springfield, and John H. Bradley, of Kennett, for appellant.

George Smith, of Kennett, for respondent.

BAILEY, Judge.

This is a suit on a life insurance policy issued by defendant June 30, 1930, purporting to insure the life of Robert E. Sells, husband of plaintiff. The cause was tried in Stoddard county on a change of venue from Dunklin county, where the suit was filed. On trial to a jury, plaintiff obtained a verdict and judgment in the sum of $1,027.50, and defendant appealed.

The petition is in conventional form, and alleged, among other things, that the defendant is a life insurance company with its home offices in Springfield, Mo.; that the application for insurance was written by defendant's agent and signed at his request; that, while said policy was in full force and effect, the insured died and due proofs thereof were made and delivered to defendant; that the policy was in the sum of $1,000, for which plaintiff made claim, but payment was refused.

The answer, among other things, sets up that plaintiff signed the name of her husband to the application of insurance without his authority or knowledge; that the application was forwarded to defendant from Cardwell, Mo., and that there was nothing on the face thereof to show that the alleged insured did not seek the insurance nor sign the application; that, had defendant known that the alleged insured did not seek the insurance nor sign the application, the policy would not have been issued, and because of the manner in which the application was made the policy was void ab initio. The answer further pleads a breach of the following warranty in the policy, to wit: "I (insured) hereby warrant that I am not addicted to the use of alcoholic drinks or narcotics of any kind."

Plaintiff filed a reply in which it is alleged that one A. E. Thurman was the soliciting agent in procuring the application, etc., and that defendant had waived any irregularity therein.

One of the errors complained of is the refusal of the trial court to give defendant's instruction in the nature of a demurrer to the evidence offered at the close of the whole case. The evidence most favorable to plaintiff, which must be taken and accepted as true, developed the following state of facts: Defendant was a life insurance company, organized under the laws of the state of Missouri, with its home office in the city of Springfield, Mo. On the 30th day of June, 1930, defendant issued its policy by which it agreed to pay Hazel Sells, plaintiff herein, the sum of $1,000 upon satisfactory proof of the death of her husband, Robert E. Sells, the insured. He died December 10, 1931. Proof of death was duly made on proper blanks of the defendant company. The application upon which the policy was issued was not signed by the insured, but was signed by plaintiff under circumstances which she relates substantially as follows: Plaintiff's husband was a barber, but not continuously employed. Plaintiff herself worked in a printing or newspaper office. One A. E. Thurman was defendant's agent at Cardwell where plaintiff and her husband resided. He solicited plaintiff to take out insurance on her husband's life on divers occasions. Plaintiff talked to her husband about the matter. He was willing to take out the insurance, but did not have the money to pay the premiums. He knew she was going to fill out the application for insurance because she said she had asked him. She also informed defendant's agent that her husband knew about the matter, and afterwards again talked to her husband in regard to same. She further testified, on cross-examination, that at the time she signed the application she did not send for her husband to come down to her office and sign same because Thurman, defendant's agent, said "it would be all right." When plaintiff signed the application defendant's agent placed a cross-mark beside the signature to indicate to the defendant company that the application was not signed by the applicant. Before the application for the insurance was taken, the agent Thurman wrote defendant, according to both his own testimony and that of plaintiff,...