Tinsley v. Washington Nat. Ins. Co.

• Decision Date: 10 November 1936
• Docket Number: No. 24005.,24005.
• Citation: 97 S.W.2d 874
• Parties: TINSLEY v. WASHINGTON NAT. INS. CO.
• Court: Missouri Court of Appeals

97 S.W.2d 874

TINSLEY v. WASHINGTON NAT. INS. CO.

No. 24005.

St. Louis Court of Appeals. Missouri.

November 10, 1936.

Rehearing Denied November 24, 1936.

Appeal from St. Louis Circuit Court; Eugene L. Padberg, Judge.

"Not to be published in State Reports."

Action by Carrie Tinsley against the Washington National Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Martin Farrow, of Springfield, for appellant.

S. R. Redmond and Henry D. Espy, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action in two counts upon two policies of insurance which were issued on August 15, 1932, by defendant, Washington National Insurance Company, insuring the life of one Ned Tillison. The one policy was for the principal sum of $69, which purported to constitute a funeral benefit, and the other for the sum of $204, which was intended as a death benefit. The beneficiary designated in each policy was Carrie Tinsley, the plaintiff herein, who was a childhood friend of the insured.

The smaller policy contained the following sound-health provision: "No liability is assumed by the Company for any, accident occurring, or sickness or disease contracted, prior to the date hereof, or any death arising therefrom. No benefits will be paid for * * * death resulting wholly or in part, directly or indirectly, from any of the following: venereal disease."

The corresponding provision of the larger policy was made to read as follows: "If the Insured is not alive or is not in sound health on the date hereof; or if * * * the Insured * * * has, within two years before the date hereof, been attended by a physician for any serious disease or complaint, or before said date, has had any pulmonary disease, * * * then, in any such case, * * * 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."

The insured died on November 7, 1933, from pulmonary tuberculosis. Death occurred in City Hospital No. 2, in the city of St. Louis, to which the insured had been admitted on August 7, 1933.

Thereafter claim was made by plaintiff under the policies and payment refused by defendant, whereupon the present action was begun in a justice's court. An appeal followed to the circuit court, wherein, upon a trial to a jury, there was a verdict in favor of plaintiff, and against defendant, in the aggregate sum of $573.55, comprising items of $273, the amount due under the policies themselves; interest of $23.25; a penalty for vexatious refusal in the sum of $27.30; and an attorney's fee of $250. Judgment was rendered accordingly; and defendant's appeal to this court has followed in the usual course.

At the close of all the evidence defendant unavailingly sought to have the court direct a verdict in its favor upon each count of the petition, and the court's refusal of its request is now assigned as error.

As a matter of first insistence, defendant argues that under the undisputed evidence in the case it appeared that plaintiff had no insurable interest in the life of the insured and on that account should not have been permitted to recover on either policy. It bases its point upon the fact that plaintiff's relationship to the insured was only that of a childhood friend, with no pecuniary interest in his life disclosed, and upon the further fact that plaintiff herself, under her own admissions, was the one who paid the premiums on the policies.

Aside from all other considerations, that plaintiff's relationship to the insured was no more than that of a childhood friend could obviously constitute no bar to her recovery. Conceding that so far as this record shows she had no insurable interest in the life of the insured which would have supported a policy on his life if taken out by her, the admitted fact is that the policies in suit were taken out by the insured himself, and not by plaintiff. Consequently the matter of the relationship of plaintiff to the insured becomes of no consequence in the case, since it was entirely proper for the insured himself, in taking out his policies, to designate plaintiff or any one else he chose as the beneficiary therein, and this regardless of the fact that such beneficiary may have lacked a pecuniary or otherwise insurable interest in his life. Lee v. Equitable Life Assurance Society, 195 Mo.App. 40, 189 S.W. 1195; Allen v. Aetna Life Insurance Co., 228 Mo.App. 18, 62 S.W.(2d) 916; Sims v. Missouri State Life Insurance Co., 223 Mo.App. 1150, 23 S.W.(2d) 1075; Reynolds v. Prudential Insurance Co., 88 Mo.App. 679.

The fact is, however, that there is properly no question of insurable interest in the case, and this for the reason that no such point was raised or suggested by defendant at any stage of the proceedings short of this appeal.

Ordinarily the plaintiff's lack of insurable interest, if any, is an affirmative defense which must be specially pleaded in order to make it available to the defendant, at least in a case such as this where the policies were taken out by the insured himself and plaintiff is the person named as the beneficiary therein. Keeton v. National Union, 178 Mo.App. 301, 165 S.W. 1107.

Conceding the general rule, defendant nevertheless argues that it can have no application to this case, inasmuch as the same originated in a justice's court where no pleading by way of an answer was required. In other words, defendant is relying upon the rule that its appearance in the justice's court without pleading served to raise the general issue, and thereby, entitled it to prove and rely upon anything that might have tended to show a valid defense to plaintiff's cause of action, including, of course, the defense of plaintiff's lack of insurable interest, as disclosed by the evidence that she herself had paid the premiums on the policies insuring the life of one in whom she was not shown to have had a pecuniary interest.

It is indeed true that under the general issue which was joined in the court below defendant might have proved and relied upon the defense of plaintiff's lack of insurable interest; and might have had the benefit of whatever the defense was worth to it under the facts in evidence. Williams v. Kessler (Mo.App.) 295 S.W. 482. But that it might have relied on that defense below is far from saying that it did rely upon it. Quite to the contrary, the only defenses interposed in the lower court were the alleged breach of the sound-health provisions of the policies, and the alleged lapsing of the policies prior to the death of the insured for nonpayment of premiums due thereon. Defendant is not now to be permitted to vary from the theory upon which it induced the lower court to act, and not having advanced or suggested the defense of lack of insurable interest during the trial of the case, the same comes entirely too late for our consideration when it is first attempted to be raised on this appeal. King v. Metropolitan Life Insurance Co. (Mo.App.) 211 S.W. 721.

The situation is quite different, however, with respect to the question of the breach of the sound-health provisions of the policies, and as a second reason why, in its opinion, its requested peremptory instructions should have been given at the close of the entire case, defendant argues that it was shown under the uncontradicted evidence, not only that the insured was suffering from pulmonary tuberculosis both prior to and at the time of the issuance of the two policies in suit, but also that such disease had caused or contributed to cause his death, which was the event or contingency upon the happening of which the policies were made to become due and payable.

Now as the trial progressed, plaintiff first made out her prima facie case upon both counts of the petition by showing the issuance of the two policies, her own status as the beneficiary designated therein, and the death of the insured, following which defendant undertook to bear the burden which rested upon it of establishing its defense that the deceased was not in sound health when the policies were issued and that such condition had caused or contributed to cause his death. Streeter v. Washington Fidelity National Insurance Co., 229 Mo.App. 33, 68 S.W.(2d) 889.

To substantiate its defense it offered in evidence the insured's death certificate which showed that the cause of death was pulmonary tuberculosis, and it put upon the stand Dr. O. S. McClellan, the superintendent of City Hospital No. 2, who read from the record of his institution having to do with the case of the insured, and who gave it as his professional opinion from the recitals contained in this record that the insured had suffered from tuberculosis for some five or six years prior to his death. This, if true, necessarily meant that defendant was not liable under the policies, since the same had been in effect only one year and three months when the insured's death occurred, or for a much shorter period than that throughout which the insured's tubercular condition had existed in the opinion of Dr. McClellan.

Ordinarily, where the plaintiff makes out a prima facie case, the court is thereafter powerless to give a peremptory instruction declaring that he cannot recover. This rule, however, has its exceptions, not the least of which is that if the evidence in rebuttal of the plaintiff's case is in writing, or is a matter of record, and stand undisputed, and serves in and of itself to overcome and destroy the prima facie case otherwise made for the plaintiff, then it becomes entirely proper for the court to declare the legal effect of said writing or record by charging the jury as a matter of law that the plaintiff is not entitled to recover, notwithstanding the prima facie case previously made by his evidence. E. R. Darlington Lumber Co. v. Missouri Pac. R. Co., 243 Mo. 224, 147 S.W. 1052; State ex rel. Bowdon v. Allen, 337 Mo. 260, 85 S.W.(2d) 63; Shaw v. American Insurance Union (Mo.Ap...