Weisman v. Continental Life Insurance Company, a Corp.
| Decision Date | 07 October 1924 |
| Citation | 267 S.W. 21,216 Mo.App. 13 |
| Parties | ANNIE WEISMAN, Respondent, v. CONTINENTAL LIFE INSURANCE COMPANY, a Corporation, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. J Hugo Grimm, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Charles G. Revelle and S. C. Rogers for appellant.
Bishop & Claiborne and Rowland L. Johnston for respondent.
This is an action upon a life insurance policy, issued by the defendant on the life of plaintiff's husband, Samuel Weisman, in which plaintiff was named as beneficiary. There was a verdict and judgment for the plaintiff for the full amount of the policy, together with ten per cent damages, for vexatious refusal to pay said policy, and eight hundred dollars attorney's fees, and defendant has appealed.
The petition is in the conventional form. The defendant, in its answer, admitted the execution of the policy and the death of the insured, but denied that it delivered the policy to Samuel Weisman, or that Samuel Weisman paid to defendant, or any person for it, the premium of two hundred eighteen dollars and thirty-four cents mentioned in the petition.
The defendant further pleaded that on the 8th day of April, 1920 the assured made a written application for insurance to the defendant, then known as Pioneer Life Insurance Company of America, and that said application contained the following stipulation:
"I hereby agree . . . that the company shall incur no liability until this application has been approved and policy issued thereon by the company and actually delivered to me and the first premium required therein paid to the company during my lifetime and while in good health and that delivery to the company's agent shall not be construed as delivery to me." (Italics ours.)
The answer also alleged that on the 14th day of April, 1920, defendant approved said application and executed on that date, its said policy of insurance; and that said policy contained, amongst others, the following provisions:
(Italics ours.)
"This policy and the application therefor constitute the entire contract."
The answer further alleged that after the execution of said policy and before the delivery thereof, and on the 6th day of May, 1920, the assured became seriously ill and afflicted with cerebral hemorrhage; that said illness and affliction caused his death on the 21st day of May, 1920; that the assured was not in good health from the 6th day of May, 1920 until the 21st day of May, 1920, but was seriously and fatally afflicted; that the plaintiff knew of said affliction and that the assured was not in good health, but for the purpose of wronging, cheating and defrauding defendant caused knowledge of said infirmity and illness to be kept from defendant and its agents; that on the 13th day of May, 1920, the defendant, through its agent, relying upon the provisions of said policy and the application thereof, to the effect that said policy would not become effective unless delivered while the assured was in good health, undertook to deliver said policy to the assured through its agent; that said agent was informed by the agent of plaintiff and the assured that the assured was out of the city of St. Louis on business; that said agent, acting for the assured and for the plaintiff, by said representations induced defendant, through its agent, to leave said policy with said agent and that thereafter said agent paid the premium on said policy; that the said statements of the said agent of the plaintiff and the assured were false and untrue; that they were made for the purpose of deceiving the defendant in relation to said policy and for the purpose of securing delivery thereof; that said policy of insurance was never in force and effect and that plaintiff never became entitled to any benefits thereunder.
The answer further alleged that the plaintiff was estopped to prosecute her claim for the reason that plaintiff in her proofs of death, furnished to defendant, stated that the assured was sick and afflicted from and after the 6th day of May, 1920, until his death on the 21st day of May, 1920; and that, according to said admission to defendant, said policy was not in force and of effect at the time of its delivery to the assured, if delivered, on account of the terms thereof and of the application that was a part thereof.
The reply put in issue the new matter set up in the answer.
The facts in the case are briefly as follows: On April 8, 1920, the assured made a written application to the defendant company, then known as the Pioneer Life Insurance Company of America, for the policy in question. The application contained the stipulation set up in the answer. The policy was issued May 10, 1920, by the defendant insurance company for forty-five hundred dollars, and contained the provisions alleged in the answer. On May 13, 1920, defendant's agent, Herman L. Weiss, went to the assured's place of business and delivered the policy to Heyman Weisman, assured's agent and clerk, and received from him a check, signed by the assured, for the first premium of two hundred eighteen dollars and thirty-four cents, due on the policy in question.
It further appears, according to the evidence adduced by the plaintiff, that when, on May 13, 1920, defendant's agent, Herman L. Weiss, appeared at deceased's place of business to deliver the policy he was told by Mr. Heyman C. Weisman, before the policy was delivered, that the assured was at home not feeling well. This evidence was contradicted by Mr. Weiss, who testified that Heyman C. Weisman informed him, at the time the policy was delivered, that the assured was out of the city on business.
The defendant adduced evidence tending to show that on May 6, 1920, the assured had fallen, in the bathroom of his home, and struck his head against a radiator, and that this caused cerebral hemorrhage and his death on May 21, 1920.
At the conclusion of the trial the court...
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Golden Rule Ins. Co. v. R.S.
...of the policy, and provisions of the former must be construed together with the provisions of the latter. Weisman v. Cont'l Life Ins. Co., 216 Mo.App. 13, 267 S.W. 21, 23 (1924). R.S. and R.C.H. claim that Golden Rule cannot void the policy on the basis of the existing insurance prohibition......