Stricker v. Metropolitan Life Ins. Co.

• Decision Date: 07 February 1922
• Docket Number: No. 16947.,16947.
• Citation: 237 S.W. 894
• Parties: STRICKER v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

237 S.W. 894

STRICKER v. METROPOLITAN LIFE INS. CO.

No. 16947.

St. Louis Court of Appeals. Missouri.

February 7, 1922.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

"Not to be officially published."

Action by Henry Stricker against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Fordyce, Holliday & White, all Of St. Louis, for appellant.

James J. O'Donohoe, of St. Louis, for respondent.

NIPPER, C.

Plaintiff seeks to recover on a policy of life insurance. The policy was issued to plaintiff's wife, Margaret Stricker, in the sum of $500, whereby defendant agreed to pay plaintiff herein the proceeds thereof upon receipt of due proof of death. The petition was filed in a justice court, and alleges that at the time of the death of the said Margaret Stricker the policy was in force, and all the conditions thereof had been fulfilled and due proofs of death and surrender of the policy made by plaintiff. The petition asks judgment in the sum of 8465, with interest from date of demand. Defendant filed no answer. Plaintiff re covered judgment in the justice's court, and on appeal to the circuit court a trial was had before the court and jury, and plaintiff again obtained judgment for $465, being the amount due under the policy, and $140.19 interest from November 1, 1914, to October 20, 1919. Defendant perfected its appeal to this court.

Plaintiff testified that he was a resident of the city of Chicago, state `of Illinois, and lived there at the time the policy in question was issued. His wife died on October 12, 1914, in Chicago. Plaintiff introduced the policy of insurance, wherein it is provided, among other things, that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall void the policy or be used in the defense of a claim thereunder, unless it is contained in the written application, a copy of which is attached to the policy. In the application the deceased stated she had never suffered from apoplexy or disease of the heart, and that she was sound and in good health. Plaintiff further testified that after the death of the insured he made an effort to collect the proceeds of the policy but that the defendant refused to pay the same and told him they would give back the premiums, amounting to $17.50. At first he refused to accept this amount, but about a month later he went back and got it. At the time he agreed to take the $17.50 he was told by the agent of the defendant company that was the best they could do. He says he thought that rather than to lose out altogether he would take the $17.50 as there was nothing else to do. Plaintiff gave him a check for the above amount with the following release indorsement thereon, which he signed:

"The undersigned acknowledge payment, and for any heir, executor or administrator hereby release and forever discharge the Metropolitan Life Insurance Company of and from all manner of claims and demands whatsoever arising under or by reason of the policy named on the reverse side."

On cross-examination the following occurred:

"Mr. Mayne (Q.): When you indorsed this check and cashed it, you knew what you were doing, didn't you, Mr. Stricker? A. I knew I was getting $17.50; yes, sir.

"Q. And you accepted that $17.50, by that indorsement on the back of that check, in full settlement of all claims? A. Because he stated that is the best he could do.

"Q. And you remember reading that release and indorsement on the back there? A. No; I never read it. I asked him to give me one-half. They said if they gave me anything they would have to give me all."

In the proof of death furnished by plaintiff it was stated that apoplexy was a contributory cause. Plaintiff, however, explained this by saying that he did not read the statement, but merely did what he was told to do, and says he had no idea what killed his wife or caused her death, as he was not a doctor. At the close of plaintiff's evidence defendant asked an instruction in the nature of a demurrer, which was overruled. This request was again renewed at the close of all the evidence. At the request of defendant the court instructed the jury as follows:

"(2) The court instructs the jury that if you find and believe from the evidence that on or about the 31st day of August, 1914, Margaret Stricker made application for insurance in defendant company, and in said application stated that she was then in sound health, and that she had never suffered from the disease of apoplexy, or disease of stomach, and thereafter the defendant, relying on the statement in said application so made, issued its certain policy of insurance introduced into evidence by the plaintiff in this case, whereby it insured the life of said Margaret Stricker, and that on the date of making said application and the issuance of said policy the said Margaret Stricker was not in sound health, but was then suffering from the disease known as apoplexy or disease of the stomach, which fact was then unknown to the defendant company, and that thereafter, to wit, on or about the 12th day of October, 1914, said Margaret Stricker died, then your verdict must be in favor of the defendant.

"(3) The court instructs the jury that if you find from the evidence that after the death of Margaret Stricker plaintiff made claim upon the policy of insurance offered in evidence; and that thereupon a controversy in good faith arose and existed between the plaintiff and the defendant as to defendant's liability under said policy, and that thereafter defendant in good faith paid to the plaintiff the sum of $17.50, and the plaintiff accepted said sum in full settlement of all claims and demands arising out of said policy and in discharge of any liability under...