Streeter v. Nat. Ins. Co.

• Decision Date: 06 March 1934
• Docket Number: No. 22739.,22739.
• Citation: 68 S.W.2d 889
• Parties: BERTHA STREETER, RESPONDENT, v. WASHINGTON FIDELITY NATIONAL INSURANCE COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

68 S.W.2d 889

BERTHA STREETER, RESPONDENT, v. WASHINGTON FIDELITY NATIONAL INSURANCE COMPANY, A CORPORATION, APPELLANT.

No. 22739.

St. Louis Court of Appeals. Missouri.

Opinion filed March 6, 1934.

Motion for rehearing overruled March 21, 1934.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Charles W. Rutledge, Judge.

AFFIRMED.

Martin Farrow for appellant.

(1) The court erred in refusing to give defendant's Instructions A and D, and in giving plaintiff's Instructions 1, 3 and 6, respecting misrepresentations — because the hospital record was conclusive in showing that insured's hernia had existed for about a year, and that he died as the result of an operation consequent upon its last protrusion. Johnson v. Mo. Ins. Co. (Mo. App., not officially published), 46 S.W. (2d) 959, 961; Smiley v. John Hancock Mut. Life Ins. Co. (Mo. App.), 52 S.W. (2d) 12, 15 and cases cited; Smith v. Ins. Co. (Mo. App., not officially published), 60 S.W. (2d) 730, 732, and cases cited. (2) The court erred in refusing defendant's Instruction E and in giving plaintiff's Instruction 3, respecting vexatious refusal, because (a) the evidence indicated that insured's hernia antedated the application and policy, and that, at the most, insurer's liability was doubtful. Non-Royalty Shoe Co. v. Phoenix Ins. Co., 277 Mo. 399, 210 S.W. 37; Merkel v. Ry. Mail Assn., 205 Mo. App. 484, 226 S.W. 299; Bennett v. Standard Acc. Ins. Co., 209 Mo. App. 81, 237 S.W. 144, 149, and cases cited; Meisenbach v. Nat. Life & Acc. Ins. Co. (Mo. App., not officially published), 241 S.W. 450, 452; Cradick v. John Hancock Mut. Life Ins. Co. (Mo. App.), 256 S.W. 501; McDowell v. Washington Fid. Nat. Ins. Co. (Mo. App.), 23 S.W. (2d) 1071; Conaway v. Commonwealth Cas. Co., 225 Mo. App. 421, 37 S.W. (2d) 493. (b) There was no evidence in the case of the value of services performed by plaintiff's attorney. Cheek v. Nat. Life Ins. Co. of U.S.A., 200 Mo. App. 533, 207 S.W. 882, 883, and cases cited; Vance v. Tootle-Campbell D.G. Co. (Mo. App., not officiall published), 295 S.W. 517, 518, and text-writer and cases cited: Hall v. Mercantile Trust Co. (Mo.), 59 S.W. (2d) 664, 672, and cases cited. (3) The court erred in giving plaintiff's Instruction No. 6, because (a) it erroneously required defendant to prove, among other things, that insured died of an ailment existing when the policy was issued; being a greater burden than that imposed by statute. Sec. 5732, R.S. 1929; Rucker v. Nat. Life & A. Ins. Co. (Mo. App., not officially published), 6 S.W. (2d) 975, 976. (b) It is confusing and misleading in itself. Neff v. City of Cameron, 213 Mo. 350, 111 S.W. 1139, 1143; Landon v. U. Rys. Co. (Mo.), 237 S.W. 496, 497; Gillette v. Laederich (Mo. App., not officially published), 242 S.W. 112, 114; Rucker v. Nat. Life & A. Ins. Co. (Mo. App., not officially published), 6 S.W. (2d) 975, 976; Lee v. Shryack-Wright Gro. Co. (Mo. App., not officially published), 53 S.W. (2d) 406, 408. (c) It is confusing and misleading, in conflicting with defendant's Instruction No. 2. Gardner v. Metr. St. R. Co., 223 Mo. 389, 122 S.W. 1068, 1076; Landon v. U. Rys. Co. (Mo.), 237 S.W. 496, 497; Anderson v. Sutton, 308 Mo. 406, 275 S.W. 32; Seithel v. St. Louis Dairy Co. (Mo.), 300 S.W. 280; Smith v. Ohio Millers' Mut. Fire Ins. Co., 325 Mo. 51, 26 S.W. (2d) 962, 968; Bennett v. Std. Acc. Ins. Co., 209 Mo. App. 81, 237 S.W. 144; Rosenberg v. Gen. Acc. Fire & Life Assur. Co. (Mo. App., not officially published), 246 S.W. 1009; Trippennsee v. Schmidt (Mo. App., not officially published), 52 S.W. (2d) 197, 199; Lee v. Shryack-Wright Gro. Co. (Mo. App., not officially published), 52 S.W. (2d) 406, 408.

John P. Griffin for respondent.

(1) Plaintiff by offering the policy in which she was named beneficiary and showing the death of the insured made a prima facie case and defendant offering no substantial evidence to contradict it she was for all practical purposes entitled to a directed verdict. Harris v. Ins. Co., 248 Mo. 304, 318, 154 S.W. 68; Novosel v. Ins. Co. (Mo. App.), 276 S.W. 87. (a) Verdicts must be based upon substantial evidence and the defendant failed to offer a scintilla of evidence upon which to base a verdict in its favor. Watkins v. Bird-Sykes-Bunker Co. (Mo.), 16 S.W. (2d) 38, l.c. 43. (2) The defendant, insurance company, claiming that the insured was ruptured at the time the policy was issued, the burden was on it to prove this and that it was a misrepresentation and that this particular misrepresentation contributed to his death. Therefore, the court properly submitted to the jury and instructed the jury that his burden is on the defendant. Dye v. N.Y. Life Ins. Co., 207 Mo. App. 540, 227 S.W. 1062; Burgess v. Pan.-Amer. Life Ins. Co. (Mo. App.), 230 S.W. 315; Sec. 5732, R.S. Mo. 1929; Scott v. National L. & Acc. Ins. Co., 281 S.W. 67. (a) Even a misrepresentation is no defense unless the matter misrepresented actually contributed to insured's death. Harms v. Fid. & Cas. Co., 172 Mo. App. 241, 157 S.W. 1046; Dodt v. Prud. Ins. Co., 186 Mo. App. 168, 171 S.W. 655. (3) The court properly submitted to the jury the vexatiousness of the defendant in refusing to pay the claim because the defendant by first offering $40, then $50, then $100 and then $200, showed that it was not refusing to pay the claim in good faith because it either owed it all or nothing. State ex rel. Continental Life Ins. Co. v. Allen et al., 262 S.W. 43.

McCULLEN, J.

This suit is based upon a policy of insurance issued by appellant, defendant below, and was commenced in a justice of the peace court, where there was a judgment for respondent, hereinafter called plaintiff. Defendant appealed to the Circuit Court of the City of St. Louis, where the cause was tried before the court and a jury, resulting in a verdict and judgment for plaintiff for $477, the amount named in the policy, and interest of $24.42, to which was added a penalty of $25 and attorney's fees of $125 for vexatious refusal to pay, the total amount of the judgment being $654.42. Defendant brings the case to this court by appeal.

We are informed by appellant's abstract of the record that the petition was in conventional form, with a prayer for the principal sum, interest, penalty and attorney's fees.

The abstract of the record does not show what kind of answer was filed by defendant.

The evidence shows that the policy was issued by defendant on September 8, 1930, application therefor having been made by A.B. Cannon, the insured, on August 27, 1930. The insured died on September 14, 1931. The premiums on the policy were all paid. Defendant was duly notified of the death of the insured and proof thereof on forms furnished by defendant was duly made by plaintiff, as beneficiary, and delivered to defendant.

The policy which was read in evidence on behalf of plaintiff, was dated September 8, 1930. It shows the name of the insured, A.B. Cannon, and that the weekly premium was forty-five cents. It contained the following recital:

"Insured requests that, in event of death, proceeds be paid to Bertha Streeter."

The policy also contained the following provision:

"If the insured is not ... in sound health on the date hereof, ... the company may declare this policy void, and the liability of the company ... in the case of any claim under this policy shall be limited to the return of premiums paid on the policy... ."

Plaintiff also introduced in evidence a certificate of death from the State Board of Health, showing the name, residence and date of death of the insured. It contained the following statement:

"The principal cause of death, and related causes of importance, were as follows: `Diffuse peritonitis (nontubercular), due to operation for ruptured or perforated ileum, cause unknown.'"

Plaintiff gave testimony to the effect that she never went through a form of marriage ceremony with the insured, but had lived with him as his "common law wife," and did not learn he was married until after his death. She testified that within two or three weeks after the delivery of proof of death to defendant, its representative offered her $40 in settlement of her claim; that this offer was soon thereafter raised to $50. Later on defendant offered to pay her $200 in settlement of her claim, the reason given by defendant for not paying the full amount of the claim being that the insured was ruptured at the time the policy was issued. These offers of less than the full amount of the policy were all rejected by plaintiff.

Plaintiff further testified that defendant's representative told her that the company was not liable because the insured's rupture had existed for more than a year, and that he was making her such offers of settlement to see what he could do for her. She stated that she never found out what caused the death of insured.

Plaintiff's testimony showed that insured was an asphalt raker; that he went to work on Saturday, September 12, 1931, was hurt some time during that day, was taken to the hospital from the job where he was working, and died some time before 6:30 A.M., on September 14, 1931.

Catherine Hayes, a witness for plaintiff, testified that she had known the insured about five years, and that he had never complained of being ill; that he worked all the time; that he was a large man, weighing over two hundred pounds, and appeared to be well a few days before he died.

On cross-examination this witness stated she did not know whether the insured was ruptured.

F.P. Sullivan, a lawyer, testified that in his opinion $250 would be a reasonable fee for services performed by plaintiff's attorney in the prosecution of her claim against defendant. The witness was asked to assume as true, facts embodied in a hypothetical question describing the services rendered to plaintiff by her attorney in the case in connection with her claim. No objection to the question was made, and the witness gave his opinion, as above stated.

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