Shaw v. Mutual Protective Ins. Co.

• Decision Date: 11 June 1928
• Docket Number: No. 16341.,16341.
• Citation: 9 S.W.2d 685
• Parties: SHAW v. MUTUAL PROTECTIVE INS. CO.
• Court: Missouri Court of Appeals

9 S.W.2d 685

SHAW v. MUTUAL PROTECTIVE INS. CO.

No. 16341.

Kansas City Court of Appeals. Missouri.

June 11, 1928.

Rehearing Denied July 9, 1928.

Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.

Action by Temple D. Shaw against the Mutual Protective Insurance Company, Judgment for plaintiff, and defendant appeals. Affirmed.

O. H. Swearingen, Fred J. Wolfson, and Al Lebrecht, all of Kansas City, for appellant.

Henry S. Conrad, L. E. Durham, Hale Houts, and Spurgeon L. Smithson, all of Kansas City, for respondent.

WILLIAMS, C.

This case comes to us from the circuit court of Jackson county, Mo. In the policy sued on, indemnity was provided for both death and disability. Plaintiff's action was for sick indemnity at the rate of $50 a week during disability and $25 additional a week during a period of confinement in an incorporated hospital. The petition asked for $1,200 damages for weekly indemnity, and prayed for damages for vexatious delay. No point is made as to the petition.

The answer admitted the incorporation of the defendant and the issuing of the policy. A general denial was then interposed, and, by way of affirmative defense, the application for the policy was pleaded, and it is alleged in the said application of plaintiff, that it was falsely and fraudulently stated and represented that plaintiff had never had any sickness or ailment involving the heart, brain, kidneys, or lungs, or any form of rheumatism; that he had not had any sickness during the past five years. It was further pleaded that the policy was issued in reliance upon these representations, and by reason of the false representations became void. The answer tendered plaintiff full amount received for premiums. Nothing was actually paid into court.

The evidence shows plaintiff was about 25 years of age at the time of the trial in June, 1927. The policy was issued August 17 1925, while plaintiff was residing in Missouri City and was employed as a bookkeeper. This had been his business since the first of the previous April. The premium for the first quarter was paid and dated September 1, 1925.

On September 22d, plaintiff, while at work, suffered a nervous collapse. He was taken to the Christian Church Hospital. Plaintiff was taken from the hospital to his home, where he remained in bed until on or about February 17, 1926. Dr. Wysong treated him "quite often" and looked after the plaintiff "all through the winter."

In December, 1922, or January of 1923, plaintiff went to Lawrence, Kan., with the intention of going to school. While there he had an attack of "flu" and returned home. He was there treated by a physician. He did not engage in any work until he entered upon his position as bookkeeper on April 1st. In September, 1924, plaintiff went to Denver for a short time, then to Phœnix, Ariz., then to San Antonio, Tex., and later to Hearne, Tex., and into Oklahoma, all before April 1st at the time he went to work as bookkeeper. While on this trip, plaintiff had X-ray pictures taken which were sent back to plaintiff's father. The evidence of the doctors who saw plaintiff after his collapse show that plaintiff had a physical and nervous breakdown. At one time the sickness was diagnosed to be "incipient tuberculosis," but the doctor who made the diagnosis testified it was but a preliminary diagnosis, and that, in his opinion, a diagnosis of incipient tuberculosis was not justified. There is no plea of nonpayment of premium.

The jury returned a verdict in the sum of $1,200, being the whole weekly indemnity claimed, but did not allow anything for vexatious delay.

After an unsuccessful motion for a new trial defendant brings the case here on appeal.

It is first contended that, where plaintiff's evidence shows he is not entitled to recovery, a demurrer should be sustained. We agree to that abstract proposition of law, but think it has no application to this case, as the testimony of the doctors make a clear case for the jury.

It is next contended that the evidence showed that plaintiff's disability arose from incipient tuberculosis from a long drawn out convalescence of "flu" or bronchial pneumonia. While there is some evidence tending to show this, we think the testimony of the doctors, that their diagnosis was a "physical and nervous breakdown," after verdict, stands as true. After repeated tests, Dr. Conover and Dr. Wysong were unable to find tuberculosis, or any evidence of it. We therefore rule against appellant on this point.

It is next contended no notice was given. This must be affirmatively pleaded, which was not done. Hilburn v. Insurance Co., 140 Mo. App. 355, 124 S. W. 63; Burgess v. Insurance Co., 114 Mo. App. 169, 89 S. W. 568.

Again it is contended that plaintiff was in arrears on the premiums, but this was an affirmative defense, and was not pleaded. Rieger v. London Guar. & Acc. Co., 202 Mo. App. 184, 215 S. W. 920.

Plaintiff's next contention is that the policy was fraudulently obtained. This contention is answered by respondent by saying that this case falls within section 6145, R. S. 1919, requiring the depositing in court of the premiums received upon the policy before misrepresentations in obtaining or securing the policy can be relied upon. It is well settled that this section is not complied with by a tender out of court. Fraker v. Casualty Co. (Mo. App.) 278 S. W. 1053; Lavin v. Insurance Co., 101 Mo. App. 434, 74 S. W. 366.

It is argued this section applies only to life policies, and that, while this is a life policy, this suit was only for the purpose of securing sick indemnity, and therefore this section of the statute does not apply. We think...