Wood v. K.C. Life Ins. Co.

• Decision Date: 02 October 1934
• Docket Number: No. 5441.,5441.
• Citation: 75 S.W.2d 412
• Parties: MABLE I. WOOD, RESPONDENT, v. KANSAS CITY LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

75 S.W.2d 412

MABLE I. WOOD, RESPONDENT, v. KANSAS CITY LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.

No. 5441.

Springfield Court of Appeals. Missouri.

October 2, 1934.

Rehearing denied, November 9, 1934.

Appeal from Circuit Court of Butler County. — Hon. Robert I. Cope, Judge.

AFFIRMED (on condition).

Frank W. McAllister, James W. Broadus and David W. Hill for appellant.

Tom R. Moore and Francis W. Kinder for respondent.

SMITH, J.

This is an action based upon an alleged contract of insurance. On July 8, 1932, plaintiff's husband, Wesley W. Wood, made application for a policy of insurance with defendant Kansas City Life Insurance Company for the sum of $2,000. This application was for what is known as a ten-year convertible term policy with a double indemnity provision and on the non-medical plan. This application was taken by defendant's agent, Mr. T.N. Shields. At the same time Shields took this application from Mr. Wood he also wrote an application for a Mr. Alspaugh, who was Mr. Wood's foreman. Both Wood and Alspaugh were at that time employed at work on the highway. The applications were signed in the hotel at Ava, Missouri. Shields told Wood and Alspaugh when the policies came he would bring them over to Poplar Bluff and deliver both at the same time. Defendant asked for a medical examination of Mr. Alspaugh and sent to Shields blanks and the names of two doctors that he could go before at Poplar Bluff. Shields wrote to Alspaugh, sending him the blanks and giving him the names of the doctors. He waited a couple of weeks for Alspaugh's policy to come to him, and then wrote to Alspaugh again, saying he had not received a report on it. In the meantime, the policy written on Mr. Wood's life was received by Shields. While Shields was waiting for Alspaugh's policy he received a letter from defendant, stating Wood was in bed sick with typhoid fever.

At the time of signing the application herein involved Shields prepared, and Mr. Wood signed, three premium notes all dated July 8, 1932. These notes, Exhibits "D," "E" and "F" became due August 20th, September 20th and October 1st, respectively. Exhibit "D" was for the sum of $5.90, and Exhibits "E" and "F" for $8.85 each.

Some time prior to August 25, 1932, defendant wrote to Mr. Wood relative to the first note being due and on August 25, 1932, in reply thereto, plaintiff wrote from Poplar Bluff, Missouri, to defendant stating, "am very sorry to say but just haven't got the $5.90 as Mr. Wood has been in bed the last four weeks with typhoid fever."

The testimony of plaintiff was that her husband took sick the last two or three days of July, 1932. He had not been making any complaint about not feeling well prior to that time. He remained in bed continuously from the latter part of July until the date of his death, which occurred on September 11, 1932. Dr. H.S. Clay of Poplar Bluff, Missouri, was called by plaintiff to treat her husband. Dr. Clay testified that he first saw Mr. Wood on July 31, 1932, and continued to treat him up until the date of his death. He was confined to his bed when examined by this physician on July 31st. On this day Dr. Clay ran a blood test on deceased and it showed he had typhoid fever; that for this test to have been accurate this disease must have been in existence nine days. Deceased's death resulted from perforation of the bowels, a complication of typhoid fever.

On October 7, 1932, defendant wrote from Kansas City, Missouri, to Mr. Wood at Poplar Bluff, stating that the premium notes were past due and asking that a remittance be sent or that Mr. Wood write stating what arrangement could be made about future payments. After receipt of this letter addressed to her deceased husband, plaintiff took it to Mr. Tom Moore, one of her attorneys in this suit. Mr. Moore testified that he advised plaintiff to send the money to defendant to pay the notes. Defendant received at Kansas City a letter from plaintiff which was not dated, stating: "In ans. to your letter of Oct. 7-32 I am sending money order to cover notes due $5.90 — 8-20-32; due $8.85 — 9-20-32; due $7.55 (Bal) 10-1-32, total $22.30. Please send policy No. 570-350 on life of Wesley W. Wood and notes to me at Walnut Shade, Mo."

On October 19, 1932, defendant wrote to plaintiff stating it had received the $22.50 covering the three notes of Wesley W. Wood, and "we enclose the cancelled notes, and are notifying our agent, T.N. Shields who will mail or deliver the policy to you in the near future."

On the same day defendant also wrote to its agent Shields, informing him that the notes had been paid and for him to deliver the policy immediately; that Wood's present address was Walnut Shade, Missouri. Shields testified that on the next morning after he received this letter he started from his home in Conway, Missouri, to deliver the policy to Mr. Wood. When he reached Walnut Shade he stopped at the post office and talked to a Mr. Weatherman. Making inquiry of Weatherman as to where he could find Mr. Wood he was told, "Well, you can't see him because he was buried right here — right out there in that little cemetery about ten days ago." Upon being told this, Shields returned to Conway with the policy. He testified that on the next day he wrote defendant that he had gone to Walnut Shade to deliver the policy to Mr. Wood and had found that he was dead. The letter Shields wrote to defendant was dated October 22nd. From this he fixed the date he was in Walnut Shade as October 21st, and stated that he had never been there before and had no knowledge prior to that date that Mr. Wood was dead.

Mr. Cecil Weatherman testified that plaintiff was his sister-in-law; that Mr. Shields came to his store in Walnut Shade and asked where Mr. Wood lived and wanted to know how to get there and Weatherman said: "You can't see him, for he has been dead and buried about ten days. He is laying right out there in that little cemetery." He further testified that he had only seen Mr. Shields that one time and that he could not give the exact date as he did not give it much consideration. He stated it couldn't have been October 21st, because the grave hadn't settled yet. He also stated that he dictated the letter plaintiff sent enclosing the money order and was responsible for no date being placed upon it.

Mr. R.L. Fitzgerald testified he had charge of what was known as the Missouri Agency in the Home Office of defendant in Kansas City; that his office received notice of Mr. Wood's death from a letter Mr. Shields wrote October 22, 1932. That his office had no notice prior to that date of Mr. Wood's death and that his office merely passed Mr. Shields' letter on to defendant's legal department, advising that Mr. Wood was dead.

At the trial the policy of insurance was produced by defendant, it having been at all times in defendant's possession, or in the possession of T.N. Shields. Both the application and the policy provided the policy should not take effect unless it was delivered to the applicant while alive and in good health.

The premium, with interest thereon, amounting in all to $23.25, was tendered by defendant into court on June 28, 1933. The testimony further shows that Mr. Wood did not leave any will and that no letters of administration were taken out on his estate.

At the conclusion of plaintiff's evidence and again at the close of all the evidence, defendant offered a demurrer, which was overruled. The court gave three instructions on plaintiff's behalf and refused all instructions offered by defendant. The jury returned a verdict in plaintiff's favor for the face of the policy, together with a penalty of $200 and $500 attorney's fees, making a total of $2,700. After an unsuccessful motion for new trial, defendant perfected its appeal to this court.

The case is before us on four assignments of error, which we shall consider with such additional statement of facts as we may deem necessary. The assignments are as follows:

"1. The court erred in refusing defendant's demurrer at the close of plaintiff's case and at the conclusion of all the evidence.

"2. The court erred in refusing defendant's instruction No. 4.

"3. The court erred in refusing defendant's Instruction No. 6.

"4. The court erred in giving plaintiff's Instruction No. 3."

The first of these assignments has to do with the overruling of demurrers at the close of plaintiff's case and at the conclusion of all the evidence.

When the demurrer was overruled at the close of the plaintiff's case, the defendant proceeded to introduce its testimony. It is a rule well established that a demurrer to evidence at close of plaintiff's case is waived if the defendant introduces evidence. [Friedman v. Maryland Casualty Co. (Mo. App.), 71 S.W. (2d) 491, 495; and cases there cited; Porter v. Equitable Life Assur. Soc., 71 S.W. (2d) 766, 772.]

It is also the rule that where defendant fails to stand on demurrer to evidence and introduces testimony plaintiff is entitled to most favorable inferences from all the evidence. [Sing v. St. L.S.F. Ry. Co. (Mo.), 30 S.W. (2d) 37; Story v. Peoples Motor Bus Co. (Mo.), 37 S.W. (2d) 898; Nicholson v. St. L. & S.F. Ry. Co. (Mo. App.), 51 S.W. (2d) 217; Sutton v. K.C. Star Co. (Mo. App.), 54 S.W. (2d) 454; Waller v. Tootle-Campbell D.G. Co. (Mo. App.), 59 S.W. (2d) 751; Chandler v. Hulen (Mo.), 71 S.W. (2d) 752, 756.]

It was conceded that the policy in this case was never delivered to the insured or to the plaintiff in this case. The evidence was conclusive that the application for the insurance was signed on the 8th day of July, 1932, and that three notes were signed on that date and delivered to the agent of the defendant and were by the agent of the defendant delivered to the defendant, and that these notes were for the first year's premium on the $2000 policy of insurance, and that this policy was sent by the defendant to its agent to be delivered to the insured. The evidence is also conclusive...