Wollums v. Mut. Ben. H. & A. Assn.

• Decision Date: 07 December 1931
• Docket Number: No. 17293.,17293.
• Citation: 46 S.W.2d 259
• Court: Missouri Court of Appeals
• Parties: ERMAL WOLLUMS BY W.P. WOLLUMS, NEXT FRIEND, RESPONDENTS, v. MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION, RESPONDENT.

46 S.W.2d 259

ERMAL WOLLUMS BY W.P. WOLLUMS, NEXT FRIEND, RESPONDENTS, v. MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION, RESPONDENT.

No. 17293.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Appeal from the Circuit Court of DeKalb County. — Hon. Guy B. Park, Judge.

AFFIRMED.

DuBois & Miller and F.P. Stapleton for respondent.

Edward G. Robinson, P.E. Horan and McKnight & Redman for appellant.

BLAND. J.

This is an action on a policy of accident insurance. There was a verdict and judgment in favor of plaintiff in the sum of $1258 together with the sum of $127.30 for damages and $500 for attorneys' fees as penalties for vexatious refusal to pay the loss. Defendant has appealed.

The policy provided for an indemnity of $80 per month so long as insured lived and suffered a total loss of time, within the meaning of the policy, and, in addition, for certain specific losses mentioned in the policy, including the loss of life. The payments provided were to be payable at the end of each month of disability. Plaintiff sued for a total loss of time, suffered by reason of having been struck by lightning on August 2, 1929, for a period beginning with the date of his injury to the filing of the suit.

In its answer and cross-bill defendant set up five separate grounds of defense: (1st) A general denial; (2nd) A defense founded upon the answers made in plaintiff's application for the policy, in which he stated that he was physically and mentally sound and had not received medical or surgical advice or treatment and had not been afflicted with any local or constitutional disease within the past five years. It was also alleged that in his application plaintiff agreed that the policy should not become binding upon defendant unless accepted while insured was in good health and free from injury; that the statements made in the application were warranties; that plaintiff falsely and fraudulently misrepresented the true state of his health, in that, he had been afflicted within the past five years with measles from which he had not fully recovered at the time of the making of the application; that he was further afflicted with disorders of the internal secretions and particularly with endocrine glands: that these disorders with which plaintiff was afflicted contributed materially to his present physical condition and to the contingency and event upon which he claims the policy has become due and payable: (3rd) That the policy provided that due proofs of loss should be made as a condition precedent to insured's right of recovery for the loss; that the company requested that proofs of loss be verified by plaintiff and his attending physician and that plaintiff had failed and refused to make such verifications and pleads that the action be abated as the suit was prematurely brought.

By its fourth ground of defense defendant attempted to convert the cause into one in equity by praying for the cancellation of the policy and that the cause be dismissed upon the ground that plaintiff in his application had stated that his average monthly earnings exceeded the monthly indemnity payable under the policy, which, as before stated, was $80; that said application was fraudulently made for the purpose and design of deceiving defendant and procuring for the insured a policy at a higher rate of compensation than he otherwise would be entitled to; that the company would not have provided for $80 per month indemnity for total disability if it had known the facts; "that the determination of this action, unless said policy be cancelled for fraud in its procurement, could not defeat all liability under the policy for other contingencies that may arise during the life of said policy and that the defendant may and could be subject to further litigation because of other liabilities which may and could have accrued under said pretended policy and that cancellation of said pretended policy is the only means by which future loss and further litigation can be uprooted and defeated. Defendant says that by reason of the premises it is without an adequate remedy at law." The answer recites that defendant tendered $56, the amount of the premiums paid, with interest.

The fifth ground of defense alleged that defendant reaffirmed and realleged all of the allegations in the second and fourth grounds of defense, which were made a part of the fifth defense and, in addition, it charged that the application for the policy was taken by defendant's agent, Fred Childers, who was at the time an employee of plaintiff's father and next friend in this action; that Childers knew that plaintiff was not earning in excess of $80 per month, knew that he was not a farmer, as he had represented in his application, and knew, in fact, that he was a student with no earning capacity; that he forwarded the application to the company without making a full disclosure of the facts with reference to the occupation and earnings of the applicant; that one Howard, whose duty it was to collect premiums upon policies of insurance issued by defendant, lived in the vicinity of said plaintiff and that he received the premium from plaintiff and remitted it to the company; that at the time he received the premium and at the time of making application for the policy. Howard knew that plaintiff was not making $80 per month, knew that he was a student, that he had no earning capacity and was not an insurable risk for loss of time; that Howard failed to advise the company of the facts in remitting the premium. In this defense the same allegation was made as that we have quoted from the fourth ground of defense and contains a prayer for cancellation of the policy.

On motion of the plaintiff the fourth and fifth grounds of defense praying for a cancellation of the policy, were stricken out. A reply was filed consisting of a general denial and an allegation that defendant had full knowledge of all matters and things alleged and contained in defendant's answer at the time it issued the policy and that such matters were waived and defendant was estopped and should not be permitted to assert any of said matters; that plaintiff furnished all proofs of loss required by defendant which were applicable to the condition of plaintiff; that defendant never requested that plaintiff furnish any affidavit of his attending physician and that the only blanks for proofs of loss furnished plaintiff by defendant were not applicable, but were only applicable after plaintiff's disability had terminated. The reply further pleaded a waiver of the proofs of loss.

Defendant asked that the cause be tried in equity, which request the court denied. Defendant excepted to the action of the court in striking out its fourth and fifth defenses and refusal to try the case in equity, on the ground that the action of the court was violative of section 30, article 2 of the Constitution of this State and section 1, article 14 of the Constitution of the United States and that section 6142, Revised Statutes of Missouri 1919 was unconstitutional and void, as being violative of said provisions of the Constitution of this State and of the United States.

Plaintiff introduced testimony tending to show that about 7:30 P.M. of August 2, 1929, he was feeding hogs in his father's barn lot; that he had been carrying corn from the corn crib and breaking the ears over a fence post; that the post had connected with it wires running in each direction therefrom, the lower part of the fence consisting of woven wire and the upper part of barbed wire. He testified:

"Just when I was breaking it (the corn), the lightning came. I remember the lightning before falling; it seemed like big balls of fire were going in all directions, it seemed like holding a shotgun in front of you and firing it off, with powder from the shotgun flying around. I fell down unconscious. After a little I tried to get up, scrambled around on the ground quite a while, but had difficulty in getting up. After I got up it seemed like I took hold of the fence to try to assist me to get up. I don't know for sure, and started off and just staggered like a drunk man would, from one side to the other. I couldn't see very good."

When he came to he had a tingling and sensation of numbness in his hands and left side; that "it seemed kinda like a fire burning." He testified that he was standing a foot or two from the fence at the time he saw the flash of lightning and was rendered unconscious. His parents and other members of the family noticed him coming to the house in the condition described above. He ate a light supper, sat around a while that evening and went to bed. He did not sleep well that night. On the next day he stayed in bed most of the time. Thereafter he continued to have bad dreams, was nervous and frequently got dizzy. He was up and about for a day or two but was in bed the biggest part of the next two months. He complained about his fingers feeling like needles were sticking them. Since the lightning shock he had a "hurt" in his left side about the heart. He had never experienced any of these pains or sensations prior to the shock but had been in good health and worked up to the day of his injury. Since the injury he had been up and down. Sometimes he would be in bed for two or three days or a week, then would get up. His condition first improved and then got worse. The least effort caused him to become exhausted. His heart would take fluttering spells. He has been unable to do any work since the accident. Since that time he has been bothered a great deal with constipation but had never before had any trouble in this regard. He has lost about fifteen pounds in weight. At the time of the trial he was suffering from Bright's disease. He was eighteen years of age when injured.

The record discloses that on the evening plaintiff received the shock a very severe electric storm took place in the community. A neighbor saw sparks shooting from the bed on which he was...