Williams v. American Life & Accident Ins. Co.

• Decision Date: 01 February 1938
• Docket Number: No. 24394.,24394.
• Citation: 112 S.W.2d 909
• Court: Missouri Court of Appeals
• Parties: WILLIAMS v. AMERICAN LIFE & ACCIDENT INS. CO.

112 S.W.2d 909

WILLIAMS v. AMERICAN LIFE & ACCIDENT INS. CO.

No. 24394.

St. Louis Court of Appeals. Missouri.

February 1, 1938.

Rehearing Denied February 16, 1938.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be published in State Reports."

Action by William Williams against the American Life & Accident Insurance Company, to recover the balance allegedly due on a policy of life insurance. Judgment for plaintiff, and defendant appeals.

Affirmed.

Martin Farrow, of Springfield, for appellant.

Dubinsky & Duggan and M. J. Doherty, all of St. Louis, for respondent.

McCULLEN, Judge.

This suit was brought by respondent, plaintiff, to recover from appellant, defendant, $750 of a balance of $818 alleged to be due on a policy of insurance for $1,000 issued by the First National Life Insurance Company on the life of Ida M. Williams, the deceased wife of plaintiff. The cause was originally instituted in a justice of the peace court, and the amount prayed for was limited to the maximum of the jurisdiction of that court. After a judgment for plaintiff, defendant appealed to the circuit court. A trial before the circuit court and a jury resulted in a verdict and judgment for plaintiff in the sum of $750, with interest thereon from the date of the death of the deceased, amounting to $173.25, less $5.90 deduction for premiums with interest. Defendant brings the case to this court by appeal.

Since no question arises on the pleadings, it is sufficient to say that plaintiff's amended petition contained the necessary allegations to admit the evidence which will be referred to. Defendant filed no pleading.

Defendant contends that the trial court erred in refusing to give its peremptory instruction in the nature of a demurrer to the evidence at the close of the entire case; in refusing to give defendant's instruction No. 2 withdrawing from the jury's consideration the validity of the release mentioned in the evidence, and in giving plaintiff's instruction No. 1. These points make it necessary to review the evidence.

Plaintiff introduced in evidence the policy sued on. The amount of the insurance named therein is $1,000, the monthly premium $2.37, and plaintiff is named therein as beneficiary.

Plaintiff testified that his wife died on Wednesday, June 22, 1932; that on the same day, after his wife's death, he took the policy to the office of Mr. Hunt, president of the defendant company, and demanded the full amount of insurance; that Mr. Hunt told him to come back the next day because the investigation had not been completed; that he went back the next day and Mr. Hunt told him to return the following day; that on the following day, Friday, plaintiff had with him Rev. Leon Gyce, his deceased wife's pastor; that Rev. Gyce told Mr. Hunt he wasn't treating plaintiff right; that Mr. Hunt said he was willing to return to plaintiff the premiums, but plaintiff refused; that Mr. Hunt said to come back Saturday and maybe he could take care of plaintiff; that plaintiff went back on Saturday, accompanied by Charles J. Gates, an undertaker, and that Mr. Hunt asked Gates what interest he had in the policy and Gates told him he was the undertaker; that when Mr. Hunt told plaintiff on Thursday that he had not investigated the matter enough plaintiff said to him: "It's time for you to investigate it. I am losing time. I've got to put my wife away. I've got five kids waiting on me for food. I want to bury her Sunday." Plaintiff stated that there was a discussion between Mr. Hunt and Mr. Gates as to the price of a funeral, and that finally Mr. Hunt agreed to make out a check for $182, and did so. The check was introduced in evidence and shows that plaintiff and Gates were named therein as payees. Plaintiff further testified that, although he signed a release and a check in Mr. Hunt's office, he did not get any of the money payable by the check or otherwise; that Mr. Hunt didn't give him any reasons for not paying the balance, amounting to $818; that Mr. Hunt just said the policy was not entitled to that, but didn't state in what manner plaintiff was not entitled to the insurance.

Further testifying, plaintiff said that he recalled paying the first premium to the defendant company; that the insurance was already paid away ahead; that when his wife took sick, he took the insurance in charge himself and paid four months on it. On cross-examination plaintiff testified that when Mr. Hunt finally refused to pay more than $182, "He said something about the reason the company wouldn't pay more was because she had died of tuberculosis. * * * That's what the record showed. * * * He didn't say how long they showed she had suffered from it."

Further testifying, plaintiff, speaking of Mr. Hunt, said: "I turned the policy and receipt book in to him, he gave me a receipt for them, and said he would have to investigate it. * * * I remember the red ink stamp on the back of the policy that is filled in. That red print was on there, but that ink writing was not; I didn't see it. I looked at it, but I didn't see that ink writing."

The ink writing referred to by plaintiff appears in the blank spaces of a statement stamped on the back of the policy, the italicized words and figures being those filled in with ink as follows:

"A lien amounting to 4 Dollars and 74 Cents, with interest at the rate of 6% per annum from the 4th day of April, 1932, exists against policy 39386. H. H. Fuller, President."

Plaintiff further testified that on June 23, 1932, Gates, the undertaker, took the blank form for claimant's affidavit, asked him the questions contained in said form; that plaintiff gave the answers and Gates wrote them in; and that plaintiff signed it before Gates as a notary public. Said claimant's affidavit is on a form addressed to the Mississippi Valley Life Insurance Company and contains twenty questions. We are concerned, however, only with questions numbered 12, 13, and 14 and the answers thereto. They are:

"12. When did health of deceased first begin to be affected? March, 1932.

"13. Cause of death? Pulmonary tuberculosis.

"14. How long had deceased had such disease? Don't know."

With respect to the claimant's affidavit, plaintiff testified he didn't know what it was for when he filled it out; "that it was supposed to prove my wife's death, but Mr. Hunt didn't tell me then that he had not completed his investigation. He didn't mention it at all. He said to come back that Saturday. He didn't give any reason why he wouldn't pay me then or why he refused to pay me or why I should come back." In this connection, plaintiff further testified: "I talked with Mr. Hunt who said he had some trouble with the policy, but I didn't understand what he was talking about; I didn't understand his real reason. He didn't tell me the company wouldn't pay because my wife had tuberculosis when the policy was revived, because she wasn't sick then."

On redirect examination, plaintiff testified: "Mr. Gates when asked by Mr. Hunt about the funeral, said he had different funerals, from $85.00 on up to $500.00, if you wanted it. He (Gates) hadn't arranged to bury my wife before the money was paid by the insurance company. We couldn't make arrangements before this. She wasn't placed in a casket until about two o'clock on Saturday."

Plaintiff stated that he did not know of his own knowledge whether the policy ever lapsed. He also testified that he had nothing by which he could fix the date of the receivership of the First National or the Mississippi Valley Company except that he just heard of it in 1931; that in May, 1932, he was paying the insurance and it couldn't have been right then.

Rev. Gyce testified that, on Friday of the week of the insured's death, he went with plaintiff to defendant's office and talked with Mr. Hunt; that he told Mr. Hunt he thought plaintiff wasn't being treated right, and "wanted him (Hunt), if possible, to give whatever equity there was in the policy to plaintiff"; that Mr. Hunt said defendant did not assume the liabilities of the First National Life that had gone insolvent; that he (the witness) set up a little contention there, and, after they didn't come to an agreement, witness told plaintiff: "I am not satisfied and you could not be, so we will go downtown and get some legal advice"; that they went to the office of Mr. Horsefield, an attorney, and conferred with him; that they went back on Saturday to Mr. Hunt's office and waited for Gates to arrive; that they finally reached the conclusion that $182 was all that would be paid on the policy; that Gates, the undertaker, quoted a price of $215 for the funeral, and that "Mr. Hunt and Gates simmered that down to $182.00"; that the check was made for $182; that plaintiff signed papers there that day, but witness didn't see him take any money, checks, or coin out of there.

On cross-examination, Rev. Gyce testified: "I am sure Mr. Hunt didn't say anything there about Mrs. Williams having had pulmonary tuberculosis at the time the policy was revived on April 4th."

The witness was asked: "On what ground, if any, did Mr. Hunt assign his refusal to pay the amount of this policy?

The witness answered: "The first statement that I said, that he said they did not assume the liabilities of the insolvent company, the First National."

The witness further testified, with respect to the payment of $182, as follows:

"Q. Well, you and Williams conferred about it then? A. Yes, sir.

"Q. And both of you finally decided to accept this amount, is that right? A. Now, there was a division right there. After the talk between Mr. Hunt and I and Mr. Williams, then Mr. Gates decided what he would take in the carrying out of the funeral.

"Q. All right, and did you and Williams talk that over after Mr. Gates said what he would take? A. No, indeed.

"Q. You didn't? A. No.

"Q. What advice, if any, did you give to Mr. Williams after Mr. Gates decided, or said, what the price of the...