Sheppard v. Travelers Protective Ass'n of America

• Decision Date: 05 April 1937
• Docket Number: No. 18859.,18859.
• Citation: 104 S.W.2d 784
• Parties: SHEPPARD v. TRAVELERS PROTECTIVE ASS'N OF AMERICA.
• Court: Missouri Court of Appeals

104 S.W.2d 784

SHEPPARD v. TRAVELERS PROTECTIVE ASS'N OF AMERICA.

No. 18859.

Kansas City Court of Appeals. Missouri.

April 5, 1937.

Rehearing Denied May 3, 1937.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be published in State Reports."

Action by Rose Cora Sheppard against the Travelers Protective Association of America. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Brown, Douglas & Brown, of St. Joseph, for appellant.

Randolph & Randolph and Nile L. Vermillion, all of St. Joseph, for respondent.

CAMPBELL, Commissioner.

The defendant issued a policy of accident insurance to Charles N. Sheppard, hereinafter called the insured, by the terms of which the defendant promised to pay to plaintiff, wife of the insured, the sum of $5,000 in event the death of insured was caused by external, violent, and accidental means, independently of all other causes.

The insured died November 2, 1928. Thereupon plaintiff employed an attorney to represent her in collecting the insurance provided in the policy. Plaintiff's attorney on November 24, 1928, by letter informed the defendant of the death of insured; that he had been employed to represent the plaintiff in collecting the insurance; and that insured sustained injury on September 25, 1928, which injury caused death on November 2, 1928. In response to the letter defendant's adjuster met plaintiff and her attorney at the office of the latter. In the meetings the adjuster claimed that there was no liability under the policy because death was due to disease, not accident, and plaintiff and her attorney asserted the contrary. On December 8, 1928, the plaintiff and her attorney at their last conference with the adjuster executed a release in which it was stated that the defendant denied any liability under the policy for the death of the insured; that in settlement of her claim plaintiff agreed to accept the sum of $995.53, which was thereupon paid to and accepted by the plaintiff. Thereafter, on April 3, 1935, plaintiff brought this suit to recover the balance alleged to be due under the terms of the policy. Plaintiff had a verdict and judgment in the sum of $4,004.45. The defendant has appealed.

The petition was in the usual form. The answer pleaded the terms of the policy, denied that the death of the insured was caused by external, violent, and accidental means, independently of all other causes; that plaintiff's claim had been fully settled as shown by the terms of the release. The reply admitted the execution of the release, charged that the alleged dispute referred to in the release "was only a pretended dispute made by the defendant, and was not made in good faith but was made only for the purpose of wrongfully inducing the plaintiff to settle said liquidated claim for an amount less than the sum that was actually due and owing, * * *" and that the release and compromise were without consideration.

The defendant at the close of the evidence requested the court to direct verdict in its favor. The request was refused. Error is assigned to the ruling.

The first question is this: Was the evidence sufficient to allow the jury to find that the death of the insured resulted from accident within the meaning of the policy? Concerning that question we need only say at this time that there was evidence sufficient to warrant the jury in determining the question in favor of the plaintiff. The questions remains: Was the evidence sufficient to show that the defendant has no reasonable grounds upon which to base its denial of liability? If in truth the defendant had no valid reason upon which to base its denial of liability for the full amount, then the payment of a sum less than the whole did not discharge its obligation, and this is true notwithstanding the release. Yancey v. Central Mutual Ins. Ass'n (Mo.App.) 77 S.W.(2d) 149.

Plaintiff testified that the insured, 72 years of age, cut three fingers of his left hand, two of them "very bad"; that he was taken to a doctor for treatment, and then returned to his home; that on the fourth day thereafter Dr. Renaud was called, and found that "infection had already set in"; and that Dr. Renaud thereafter treated insured twice each day until he died. In direct examination plaintiff said that after insured came home on the day of the injury he "never left the house," had red "streaks" along the left arm, and "kernels under his arm"; that insured did not have a paralytic stroke, did not die suddenly, but gradually passed away; that two days prior to the death of insured Dr. Bauman was called to treat, and did treat, the insured. Dr. Bauman, though he made the death certificate, was not called as a witness. There was expert opinion evidence in answer to hypothetical questions to the effect the injury caused infection and the infection caused death.

Thus the plaintiff's case, were it not for the release and settlement, was one for the jury.

Of the settlement: The adjuster did not talk with the plaintiff save in the presence of her counsel. According to the plaintiff, the adjuster said to her that a Mr. Cazel told him that the insured had heart trouble; that she in reply said that Mr. Cazel could not have made the statement because it was not true; that the adjuster also said, "there is others claim he had heart trouble, and he died from a stroke"; that in reply she said: "He got up one morning about three o'clock in the dark and he hastened to the bathroom and like happens to someone, you have to get up, and as he went through the bedroom by accident there was a chair in his way and he kicked the chair and the chair went one way and he went another and it threw him— * * * I heard it. It startled me and I jumped out of bed immediately and I saw him." The plaintiff further said she told the adjuster that insured died from infection of his hand and "nothing else"; and that he was not giving her a "fair deal." Plaintiff's evidence shows that her lawyer told her that there was a difference of opinion among the doctors as to the cause of death, that she had "little chance to win," and that the offer of settlement should be accepted. The plaintiff on October 17, 1928, wrote to the defendant as follows: "As requested, I hereby report Mr. Sheppard's condition. He...