Spencer v. National Life Ins. Co.

• Decision Date: 08 January 1918
• Docket Number: No. 14940.,14940.
• Citation: 200 S.W. 80
• Parties: SPENCER v. NATIONAL LIFE INS. CO. OF UNITED STATES.
• Court: Missouri Court of Appeals

200 S.W. 80

SPENCER v. NATIONAL LIFE INS. CO. OF UNITED STATES.

No. 14940.

St. Louis Court of Appeals. Missouri.

Argued and Submitted December 4, 1917.

Opinion Filed January 8, 1918.

Rehearing Denied January 23, 1918.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

"Not to be officially published."

Action by Mary Spencer against the National Life Insurance Company of the United States, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

Martin T. Farrow, of St. Louis, for appellant. Caroline Thummel McCarty, of St. Louis, for respondent.

REYNOLDS, P. J.

One Franklin Spencer held a policy in the National Life Insurance Company of the United States of America, that company agreeing to pay the beneficiary, here the wife and plaintiff, the sum of $300 in case of death resulting directly and independently of all other causes from bodily injuries effected through external, violent and accidental means, provided death occurred within 90 days from the date of the accident. The policy was issued in consideration of a policy fee and a monthly premium of $1.35. Practically, it was a policy from month to month, renewable upon the payment of the $1.35 monthly. It required satisfactory proof of the fact that the injury and death had been furnished within 90 days from the date of the death and that the acceptance of renewal premiums should be optional with the company, if not paid on the first of each month.

It was averred in the petition that on March 11th, 1913, the insured sustained bodily injuries effected through external, violent and accidental means, to-wit, a blow from some blunt instrument upon his head, received from a person or persons unknown to plaintiff, and which injury directly and independently of all other causes resulted in the death of the insured on March 17th, 1913. Averring that the insured had complied with all the conditions of the policy during his lifetime and that plaintiff, after his death, had complied with the conditions of the policy to be complied with by her and had given due notice of the death to defendant, as required by the terms of the policy and demanded blank forms upon which to make proofs of death but that defendant then and there disclaimed all liability on the policy, and refused to pay the same and that this refusal was vexatious and without reasonable cause, plaintiff demanded judgment against defendant for the sum of $300 with 10 per cent. damages for vexatious refusal to pay and for reasonable attorney's fee with interest and costs.

The answer, after a general denial, denies that the death of the insured resulted solely from bodily injuries and accidental means and within 90 days from the date of the alleged injuries, but averred that it was the result of a natural cause, namely cerebral meningitis. It also set up as a defense that by the application of the insured he had agreed to pay a monthly premium of $1.35 in advance on the first day of each calendar month without notice; that on about February 4th, the insured paid the premium for that month thereby continuing the policy in force until noon March 1st, 1913, but that the insured did not pay the March premium in advance on March 1st, 1913, as required by the application and policy, or thereafter prior to the time he contracted the illness or received the alleged injuries claimed to have resulted in his death, wherefore it is claimed that the policy is void.

It is further set up that the insured became seriously ill on March 11th, 1913, which fact plaintiff well knew, but that having this knowledge plaintiff concealed it from defendant's agent and caused to be paid to him the past due March premium; that the agent then and there mistakenly believed the insured was in good health and being ignorant of the insured's illness otherwise neither he nor defendant would have accepted the past due premium but had received it in consequence of the belief and mistake of facts as to the then condition of the insured; that neither the defendant nor its agent then or thereafter knew of the insured's condition or of his death on March 17th until about March 19th, 1913, whereupon the defendant, in due time thereafter, tendered plaintiff back the $1.35 by way of a check drawn to her order, which check plaintiff had retained and now retains and which defendant is willing and able to pay and tenders.

As another defense, defendant pleads that by payment of the premuim on February 4th, 1913, the policy was continued in force until 12 o'clock noon of March 1st, and that insured had failed to pay this premium for March on the first day of the month as required by the policy and application, setting up the terms of the policy to that effect.

It is further averred, and by way of defense, that the sickness whereby the insured died began on March 11th, 1913, and plaintiff caused this past due premium to be paid defendant's agent, who had received it under the circumstances before set out.

As a fifth and final defense, defendant sets up that plaintiff had failed to furnish proofs of death as required within 90 days from the date of the receipt of the bodily injuries referred to.

A reply was filed and the cause submitted to a jury which returned a verdict in favor of plaintiff for $300 and interest, amounting to $21.95, and $130 for reasonable attorney's fees and damages. Judgment followed, from which defendant has duly perfected its appeal.

Learned counsel for appellant challenges the evidence as not making out a case and claims error in the action of the court in failing to so instruct the jury. The defenses now relied on in support of this claim were, first, that there was no accident shown by the evidence; second, that the policy was not in force because of non-payment of the premium on the day named; third, that proofs of death had not been furnished within the stipulated time.

Examining the evidence as to the first proposition, it is sufficient to say that there was evidence tending to prove the facts pleaded by plaintiff in her petition and sufficient to take it to the jury on the question of the death being the result of accident,...