185 Mo. App. 616 | Mo. Ct. App. | 1914
Plaintiff recovered judgment for the sum of $507.50 on a policy of insurance and an attorney’s fee of $50 on account of defendant’s vexatious refusal to pay.
The petition alleg'ed that plaintiff was the owner of a jack, named Gregory, and that on January 29, 1913, the defendant by its policy insured said jack for a term of one year against “death by accident, disease, fire, lightning, cyclone, theft, or by reason of a broken leg when found necessary by attending veterinary to destroy the animal’s life.” It is also alleged that the jack died on January 23, 1914, and that before and after his death the plaintiff (respondent) performed all the terms and conditions of the policy and did all things required to be done by him, but that defendant declined to pay. and its refusal to pay was vexatious.
The answer admits the issuance of the policy, but alleges that it was based upon an application therefor by the plaintiff to the defendant in which application the plaintiff warranted that he had paid $1000 for the jack, which was not true. The second defense was that the application to which the policy referred contained a promissory warranty that in case the animal should become sick the same would receive the care of a veterinary surgeon, and in this, defendant charged that plaintiff failed. As a third defense defendant alleged that the policy makes an exception
The plaintiff for- reply filed a general denial and a plea of non est factum, and — “further replying, plaintiff denies that he executed the application, the copy of which is set out and referred to in defendant’s said answer.” The reply is sworn to.
It is admitted that the application was by express terms made a part of the policy and that the policy was based entirely on the answers contained in the application, and that in the application which was signed by the plaintiff, the question, “What amount did you pay for the animal?” is answered, “One thousand dollars.” The plaintiff admitted that the animal did not cost him $1000 but that $700' was the purchase price and that he paid $52 freight and expense to transport the jack from north Missouri to his farm. He testified that he signed the paper while out in the field where the defendant’s agent came to write the insurance. The agent had been soliciting him to place an insurance policy on this jack. The plaintiff testified that he did not have his glasses with him when he signed the application, and that the agent of the defendant made up the application, putting' down the answers that he (the plaintiff) gave, and that when it was finished he signed it but could not read it. He further stated that he told the agent exactly what the jack cost him and that the agent attempted to get him to answer that it cost him $1000 because of the original cost, the freight and expense of fixing* up the lot and the bam or stall for the jack, as well as the cost of this insurance, but plaintiff says he refused to say the
When the plea of non est factum was made by the plaintiff there was no motion filed by the defendant nor anything done to require the plaintiff to be more definite and specific in said plea.
Nor is it at all certain that it was - necessary to have sworn to the reply because the application, provided that the insurance should not be in force until and unless the application should be accepted by the company. This would make the contract one that was to be executed by more than one party, and hence does not fall within the rule in section 1985, Revised Statutes. 1909, requiring a plea of non est factum to be under oath.
In the abstract presented the only reference made by any one to the failure of the plaintiff’s reply to plead estoppel occurred during the statement of the case by pláintiff’s attorney when he referred to what the evidence in this particular would disclose. Defendant objected to such statement for several reasons, one being that such a defense had not been pleaded. For a ruling, the court remarked, ££Gk> ahead.” The court was not required to pass upon the admissibility of evidence at that point in the trial and would naturally withhold a specific ruling on the question until the evidence was offered.
The reports of our State contain many decisions that an estoppel in pais must be specially pleaded and that unless it is so pleaded evidence designed to establish such estoppel will be excluded. However, where the evidence is received without such objection and the parties treat the case as though the estoppel had been specially pleaded, such objection cannot be urged for the first tube in the appellate court. [See Price v. Hallett, 138 Mo. 561, 38 S. W. 451; McDonnell v. De Soto Sav. & Bldg. Assn., 175 Mo. 274, 275, 75 S. W. 438; Wilcox v. Sovereign Camp W. O. W., 76 Mo. App. 580; Strother v. De Witt, 98 Mo. App. 299, 300, 71 S. W. 1129; Ziekel v. Douglass, 88 Mo. 382; Kelly v. Thuey, 143 Mo. 437, 45 S. W. 300.] We find this rule laid down in Bacon’s Missouri Practice, Yol. 1, sec. .194, p. 233: “If no objection is made to evidence the neces
The question whether plaintiff falsely stated in his application for insurance that the cost price of the jack was $1000 was properly submitted to the jury in the instructions and the finding thereon in plaintiff’s favor will not be disturbed.
Appellant cites authorities to the effect that an assured cannot escape the force and effect of statements made in his application for insurance by the mere claim that he signed the application without reading or having it read to him, and that unless some fraud, deceit or misrepresentation has been practiced he is bound by his signature to the same. This is undoubtedly the law and has been so declared by this court in Outcult Advertising Co. v. Barnes, 176 Mo. App. 307, 162 S. W. 631, and in England v. Houser, 163 S. W. 893. But in both those cases the principle is recognized that where the party signing was laboring under some disability or infirmity and was unable to read what he was signing and relied upon the other party’s word as to what it contained, he is not bound where a fraud is practiced on him in procuring his signature to the instrument which was different from what it was represented to be. [See Paris Manufacturing Co. v. Carle, 116 Mo. App. 581, 501; 92 S. W. 748.]
Defendant’s second and third defenses we think are overcome by the testimony of'the plaintiff with reference to any knowledge of the jack being sick prior to his death. It is admitted that plaintiff did not have a veterinary surgeon, nor did he wire to the defendant advising it of the sickness of the animal. The evidence shows that a veterinary came to plaintiff’s place
It is also contended that plaintiff cannot recover in this case because he has not shown that the animal died from some of the causes' mentioned in the insurance policy. [See Banta v. Continental Casualty Co., 134 Mo. App. 222, 113 S. W. 1140; and Walton v. Phoenix Ins. Co., 162 Mo. App. 316, 141 S. W. 1138.] The evidence disclosed in the record is that the jack was found dead and that there was no external mark or evidence of any violence. Under these circumstances the jury could reasonably infer that the jack died from some disease common to that species.
Appellant further complains of that part of the judgment which allows $50' as an attorney’s fee, because, it argues, there was no evidence of vexatious
In the letter (referred to as “Exhibit C”) written by the insurance company to the plaintiff prior to the commencement of this action, a refusal to pay was placed upon the grounds that plaintiff failed to give notice of the sickness of the animal — did not secure the services of a veterinary — that although the veterinary informed him the jack was sick with spinal paralysis the plaintiff refused to allow the veterinary to treat the animal — that plaintiff made false statements with reference to the cost of the animal — and that the jack was not registered as warranted. Some of these reasons we have already disposed of in the opinion; the others the defendant conceded at the trial could not be established. This is sufficient evidence from which the jury would be reasonably warranted in concluding that defendant vexatiously refused to pay the claim of the plaintiff. The letter was a positive refusal o pay; hence there was no further need for a demand. The questions as to the vexatious refusal to pay and the failure to make demand are discussed in the case of Coscarella v. Insurance Co., 175 Mo. App. 139, 157 S. W. 873.
The judgment is affirmed.