*1 222 286 722; Shirey, D’Aleria Fed. Supp. 159 Y. v. Lorber, N.
Fisick v. 1133; 144 Dupree (Colo.), Pac. Thomas v. Lockwood 523; v. Gibson 104 Schrayer (Conn.), v. Atl. 841; Bishop et al. N. W. (Wis.), Eq. 358; 186 W. Gulf Ryne (Neb.), Farm Co. N. 349; v. Liebers (Tex.), 169; Co. 261 S. Pierce- Texarkana, etc., Ry. W. Ref. Co. v. Brading S. W. (Tex.), v. Fordice 707.] cited find them have examined the eases We and. point. not judgment All is affirmed. concur. Henry B. Appellant, v. Central Mutual Sappington, Insurance Respondent. S. (2d) 77 W. 140. Assn., City Appeals. Court
Kansas November *2 Randolph Randolph, Gallagher & Nile G. and J. iB. Vermillion appellant. for
Embry Embry respondent. <& Irwin & Bushman for REYNOLDS, C. This suit instituted in the Circuit Court County upon of Moniteau an insurance plaintiff and is a suit upon Sapping- issued of Elizabeth A. certificate the life ton, 3, 1925, December sum of plaintiff, wife of the dated $1000, beneficiary. plaintiff The plaintiff which the judgment $500, seeks recover sum balance due under said certificate. petition sufficiently sets forth a
The is in the usual form and judgment prays cause of action for said balance and therefor interest. organization answering, corporate admitted its engaged writing plan insurance the assessment it was on
Missouri; of the certificate sued upon, admitted the issuance August 2, 1932, beneficiary in on the named death of every other plaintiff; certificate to be and denied each defenses: allegation petition. It tendered two affirmative (1) by misrepresentation and fraud the certificate was secured (2) beginning; from account null void was, thereof, on upon, by the claim sued compromised the defendant satisfaction $500 sum thereon an accord and
payment of the plaintiff is not entitled thereof, the claim and reason of said recover. denying answer, reply filed a plaintiff To the defendant’s and satis- allegations new matter therein attacked accord answer, be- set as void faction, compromise release, up in the existing upon bona between cause it not based fide respect defendant with to the cause of insured’s supported by a consideration. and was not sufficient death trial, On introduced the sued witnesses, one introduced evidence two of whom was at- Latham, himself and other whom was Dr. who ' physician. tended the insured at time of death as her appears, It record, the certificate sued *3 signed insured, issued written therefor application appears dated November 1925. Such in the record 3, being as defendant’s Exhibit a part introduced as cross-examination, and is follows: ‘‘ FOR APPLICATION! MEMBERSHIP 112-B CENTRAL MUTUAL ASSOCIATION INSURANCE
11-22-1925 “Having acquainted objects been made purposes and your Association, (word illegible) hereby I endorsing them, make Association; a member become if agree accepted I By-Laws to abide of the Association which are may now force or which adopted. hereafter regularly And agree further this membership and the certificate of which may be me, together issued to By-Laws with the As- sociation, shall be construed as a contract between As- me and the fully sociation as completely though written in one instru- ment; agree and I further that if accepted as a member of As- I sociation that warrant given the truth of the answers following questions: ‘‘I hereby agree warrant and I am now of body, sound mind health, injury. free disease or “ (Q.) any you Have following diseases? “Kidney, no; stomach, no; liver, no; no; no; cancer, heart, trouble, no; female diabetes, no; trouble, no; no; bowel insanity, no; paralysis, tuberculosis, no; lung, no; dropsy, no; no; rupture, no; rheumatism, any other ailment, defect or no. “If applicant yes any answers questions of the above respecting any of the above diseases, he give or she will history full of disease—
225 . physician address, Dr. my family Sherrell, “The name is Aye., St. Louis. Franklin you? years.
“How are old
“(cid:127)When born? March Morgan County. born?
“Where you “Are health? Yes.
‘1 your present Clarksburg. What is address? your occupation?
“What Housewife. you years ago.
“When were last sick? way? you any
“Are diseased in No. Henry
“Name of beneficiary, Sappington. beneficiary, Clarksburg.
“Address “Relation beneficiary, husband. - “I, Beneficiary or Beneficiaries named herein, any hereby consideration of I might benefit therefrom, derive do any questions warrant and all statements and answers to the made applicant true, herein to be truth of same literal hereby shall be and is made a any consideration lia- precedent any bility of policy may be issued from this application blank, by the Insurance Central Mutual Association I Beneficiary. wherein am named
“Henry B. Sappington, “Signature Beneficiary. hereby agree “I warrant foregoing statements agreements foregoing and the each answers and of them the fore- questions going full, complete are literally true, and that hereby literal truth of same shall be and pre- condition any liability cedent to may on certificate which be issued to byme hereby the Central Mutual Association, Insurance and I tender *4 answers, said warranties, agreements statements and to the Central Mutual Insurance Association a as basis the issuance for to me aof insurance.
“Elizabeth A. Sappington, “Applicant. Agent. “J. I. Jones, System Expense
“To Eliminate a Credit and Additional the Fee $5.00 Accompany Must the Application.” appears It Jones, agent that one defendant, of the took calling out filled on his wife their home for that purpose. It plaintiff, he, was testified the agent, asked just questions, the three age name and —her beneficiary ; and the name of the any ques- that he did not ask her — health; tions her about physical he told the insured that no necessary examination was accept and that the defendant would anyone age years. under the fifty Plaintiff the testified agent filled every out the blank in detail and asked reading they sign it, did without plaintiff to insured and without himself and the insured signed by both was that it
it, and being ex- The of them. having read to either signa- handwriting the in whose was asked he witness, hibited to answered, “My appeared; and he Sappington A. ture Elizabeth B. handwriting ‘Henry “Whose question, wife’s;” and to question, “Mine.” In answer to the answered, in?” he Sappington’ he writing here?” on handwriting the rest of the “Whose In I. I think it is.” answer agent’s; J. Jones answered, “The him that she your the statement to question, “Did wife make any answered, “He didn’t ask kidney he trouble?” not have did ques- To the of her health.” questions all about the condition at questions at the the various that are shown to tion, “The answers in that make those answers she the four columns—did top of agent all; himself.” made them all way?” answered, “None at he made, that, time The witness also testified substance, that she health was considered the insured’s —in sewing cooking, for the general housework, doing such' taking milk, churning, and taking children, washing, care of family comprised (him- of seven ; that the care of the chickens — children) ; that she continued in such state self, wife, his and five certificate, until she took until sometime after out of health June, 1927. about 1922, tended to show The evidence further became floating kidney, which thereafter from a insured had suffered 1927, trouble. In and caused no more imbedded fat gall February, 1932, she was treated stones. In operated on for wearing support caused the friction of Dr. Latham for trouble Dr. 1932, In Latham treated the insured long time. July, for too taken to ptomaine poisoning. He her to be or food caused August died, hospital he her until she where treated diarrhea, which caused poisoning developed into colitis and not control her bowels. death. She could August 5, 1932, insured, plain- soon after the death of the About tiff, by letter, the defendant of the death of insured. notified acknowledged receipt notice and Defendant, letter, regular plaintiff that claim would be handled advised his request defendant, plaintiff called manner. Later, City, Missouri, in Jefferson upon the at its office occasion, certificate. On this he his claim under the reference to Dallas, representing by Dr. that de- was informed indicating that the insured fendant had a letter *5 health at the time the certificate was It the condition of her issued. explained plaintiff agent Dr. Dallas who to took inquiry had about her health made no and that the kidney only previous floating was from a trouble sbe had suffered become imbedded in fat and caused no trouble. which had more 1932, September 16, again Later, plaintiff about visited defendant’s request defendant. While was there this office at the of he reject occasion, plaintiff, Dr. Dallas stated “—we decided to your being your him, now, wife claim — but later said to “— years you policy give this seven five carried we decided to hundred dollars,” time, plaintiff, which offer at declined returned his home. September 19, 1932, stating
Later, he wrote that he defendant accept decided to $500. the offer of
On September 20, 1932, a called representative defendant upon plaintiff $500, at his check for which he delivered home plaintiff signed accepted; and which re- ceipt and in evidence release therefor. release introduced part and is as cross-examination follows: AND
“RECEIPT RELEASE “Receipt of sun of Five of and from Central Hundred Dollars Mutual City, hereby Insurance Association of Jefferson is Missouri, acknowledged, claims, accepted in which sum is full settlement of rights arising and demands under and on account Certificate Membership A. cer- Sappington, No. issued to Elizabeth hereby tificate is surrendered to the Association cancellation. acknowledged “It dispute further that a bona fide has arisen between Beneficiary concerning represen- Association tations insured as to the of her health at the time of condition making application; and settle order existing and the differences and as an accord and satisfac- paid accepted tion the sum aforesaid the Association and Beneficiary in full settlement. 20th day Sept. this “Dated
“HenRY B. Sappington, “Beneficiary. “Witness: HaROLd W. Law.”
It appear that, would on one or both of the occasions City, visited the at its defendant offices in Jefferson there was more or less extended conversation in which defendant’s representatives insisted the insured was not health the time she took the and prior thereto she had the condition her health in therefor at such however, time. There not does that there was appear, complaint them that time to the effect that the insured suffering from the colitis and diarrhea from which she died. negotiations during
It appears settlement, for the con- siderable discussion was had over information claimed to have given Miller, family physician Dr. former plain-
228 concerning the health condition
tiff, physical and of the insured concerning fainting spells and which had about she abdomen, in pains upper about that time and acute and severe concerning complained. plaintiff’s which operation The which gall stones, Ravensway Hospital wife underwent for at the Van at brought Boonville, up discussed, together with in- also concerning Ravensway formation furnished Dr. Van defendant physical her condition and the condition her health at for years prior history several to that time. The her condition given Ravensway Van operation to Dr. at time of October, 1927, in in which pain she stated that she had suffered with upper region years in the abdominal for four time, mentioned; result contended that her death was the gall stones, operation of the after-effects of her for condition misrepresented her, of her health had been that the condition her health at and before certificate was issued was bad—of only plaintiff it her death. facts learned since The insisted that health, times, good, supposed condition of her at such be, and that the condition of her health had not been by her. The sum and substance of the whole matter is there concerning lively between and defendant awas yet in faith or not honest one to be matters —whether determined. in appearing the record will be noted as pertinent matters
Other require. may occasion jury April term, before a and the court at trial was
The gave, plaintiff’s evidence the trial court conclusion of de- At the directing a request, peremptory instruction verdict for fendant’s involuntary plaintiff took an nonsuit Thereupon, the defendant. aside; judgment the same was rendered leave to move to set (cid:127)with A motion to set aside the nonsuit was filed for the defendant. time, motion was the court denied at in due judgment entered, plaintiff prose- term, 1933. From the September appeal. cutes this
OPINION. (1) assigns as follows: appeal this error close at the evidence giving defendant’s demurrer to the in the instruction case; (2) giving peremptory in plaintiff’s motion (3) overruling plaintiff’s defendant; for to find grant new failing involuntary aside the nonsuit to set trial. disposed as one may assignments thus made
The three granting defend- court erred upon whether the depend made to close of a demurrer requested the nature ant’s instruction was this It directing verdict the defendant. case follows by plaintiff; the nonsuit instruction that forced if right giving the court instance, the instruction in the first refusing it was not error in to set the nonsuit aside re- fusing a trial. new
Whether properly court below ruled the demurrer de pends upon whether the defense of a settlement and an *7 up accord and satisfaction set in appears defendant’s answer the case as plaintiff.
That plaintiff had failed to tender back $500 the sum of received by him upon justify settlement did not the demurrer.
Under required the circumstances shown record, he not to tender it back in to order maintain this suit. v. Na- [Goodson tional Association, Masonic Acc. 91 Mo. App. In order that 339.] pleaded defendant’s defense be made to in appear plaintiff’s case made, appear it must that, therefrom after the death the in- of sured, good under the upon, dispute certificate sued in faith arose plaintiff between the right and the defendant as plain- to tiff to demand and receive payment liqui- of defendant of the dated provided by $1000 sum of paid terms of the certificate to be liability as to the defendant payment right for such and its deny liability to therefor payment; and to refuse dispute said a real them, arising issue between over rights matters material to the of both in regard, rights and defendant such upon which the depended concerning of each good which each in faith considered and settled 3 rights doubtful; his dispute that such compromised parties by agreement between the between them that defendant pay should $500 sum of in full settlement and dis- charge claim and that accept should such sum in claim; full settlement pursuance and release of in his agreement, such paid such sum was plaintiff by so defendant and accepted by so plaintiff.
It is insisted compromise disputed that the of a claim is a sufficient in consideration and of itself for an accord and satisfaction thereof. by Judge As Harms in the case Trimble Fidelity v. Casualty 241, & Company York, New 172 App. Mo. l. 249, c. 1046, regard 157 S. W. to the same or a similar con tention made, there “This is without doubt true where the amount unliquidated due is controversy good there is a faith over the matter. may And there cases in which the amount con troversy liquidated a compromise where would be a sufficient if liability depended consideration upon facts the existence of which were in good doubt and controversy there was a faith over them.
But liquidated where the acceptance demand is fixed or of a sum than although expressly less the whole, discharge to be stated sum, of the entire will discharge not the debt con since there is no sideration. K. Company, 182; v. C. Cable 160 Mo. c. l. [Winter Goodson v. 1 Assn., 351; National Mo. App. Sutherland on Dam 442, l. c. App. 109 Mo.
ages (3 Ed.), 248; Dolan, Tucker v. sec. W. Corporation, 152 S. 452; Biddlecom v. Accident General 103.] re case under claimed, however, (referring case It is in this him) that, because disputed, view before that the claim was upheld since good and must be dispute, compromise thereof true, but the Ordinarily, in law. this compromises are favored rights regard their parties must claim must be a real one and must concerning doubtful, law and the it as in fact or release that statement be made bona fide. The mere enough show a consideration dispute is not amount due is release; controversy respecting real and the issue must be Dam on Sutherland parties be considered doubtful. [1 (3 between ages There be an honest difference Ed.), sec. must 251.] 110 Mo. Smith, v. parties, faith. [Chamberlain Corpora Assur. 660; v. General Accident App. l. c. Biddlecom S. tion, 103, l. 152 W. c. 106.]” by Judge applied the case law, as thus stated TriMbde supra, York, Fidelity Casualty Company New Harms v. & *8 and, stated, applies law as the well settled of the State
seems to be case. disposition controls the of the instant to and answer, as a basis defendant, in It will be noted that the its and satis release and of accord for its defense and a (a) in was issued faction, that the certificate suit contends A. Sapping- Elizabeth insured, written therefor application her certain propounded to ton, application in which there were of, the truth and warranted she therein answered ciuestions among following following: any you “Have which were the any no; no; trouble, ? . . . . . stomach, diseases . . . bowel . ailment, no;” (b) application in said other defect that was stated and her be true Sappington the said Elizabeth A. warranted body, was,' making thereof, sound that she at the time of the injury that mind, and health and was free from disease or and (c) years thereto; it was prior she had been last sick four application, A. in Sappington stated said Elizabeth said as precedent condition of the certificate of insurance to the issuance and said the defendant as inducement to defendant to issue together certificate, application by her, with the so made together by thereon, with the membership certificate of to be issued association, laws of the should be considered as contract between fully though completely her and the defendant as and association instrument; (d) relying solely upon written in one defendant — believing application the statements contained said and them to Sappington accept Elizabeth A. and be true as warranted the said precedent ing as a condition to the issuance of the truth thereof fully believing Sappington certificate and that said Elizabeth A. said health, injury from disease mind, was of free and body, sound from bowel diseases the stomach and liver and- and free from years preceding four trouble, and that she had not sick for mem making application to her the certificate of said —issued bership upon. sued negative all such statements proceeds the truth of The answer they alleged allege were and to matters said Sappington Elizabeth A. suf- false and untrue and that said physician prior to the fered serious ailment had consulted a years making application and, of said at the and for several time (a prior hepatitis disease of thereto, had been afflicted with chronic liver) disease of the nephroptosis crisis Dietl’s (a kidney) body, mind, and health therefore not sound fraudulently con- injury, free from disease and of which was that, by cealed from the of said false state- reason ap- ments and contained warranties which were made and suit) (now plication, the thereon certificate issued to the deceased beginning, null never and void from the so that the defendant became indebted to -sum whatever.
It is further after the death defendant’s answer that, having of said was not insured —the discovered that she time body, health, of sound and mind and free from disease at her and at the time of the issuance of its certificate, suffering but that she liver and disease kidney and, years for a number of the date of the suffering regions pains in with severe the abdominal causing dizziness, fainting nausea, spells, spells, for which blind controversy she was under arose physician thereupon the care of a — between it was in as to whether said insured kidneys health and free dis from disease of liver and or other eases at the time or not de and as to whether beneficiary fendant was indebted to under *9 any whatever; in sum it was that further acquired having prior after the death of the information insured — controversy concerning said prior her ill health at and to the time application in 1922 her illness from diseased liver kidney concerning Ravensway operation upon an Van her at the Hospital stated, giving history ailment, where she had in the of her pain region that had had in upper she the abdominal for the four years past, prior that her had a float examination showed to have ing kidney, that, fainting years, for a number of she had had good in spells thus faith, reason of the information —believed acquired concerning prior the health the of the insured at and application, anything that it was not liable whatever under certificate and that the defense settlement and answer, plaintiff’s claim, up accord and satisfaction of set dispute resulted from a settlement of it and between concerning such matters. might dispute
To have been a real a founda such have formed tion for claim compromise, accord, and satisfaction of up record, set apparent, it is from answer, concerning arose, matter concerning issue must have been contributing causing the sickness or or the death disease application the insured and whether or not the insured had falsely misrepresented the facts with reference to the existence such sickness or at or application disease the time was made prior thereto.
The law is that, misrepresentations well settled in Missouri where or false statements made for insurance applying are an insured by which the insurer deceived matters as to the existénce of the represented, misrepresentations so are, nevertheless, immaterial and do not render the policy void unless the matters so at that time contribute to or Such cause death of insured. applies rule companies. to domestic assessment life insurance [Sec 5732, R. 1929; 5754, 1929; tion S. Sec. R. S. v. Missouri Bowers (Mo.), (2d) 1058; Mut. Ass’n. 62 S. W. Anderson v. Missouri Ben. Ass’n, App. 97, 740; 198 Mo. Metropolitan S. W. v. Hicks Life Co., App. 162, Ins. 196 Mo. l. c. 171 S. W. Such 661.] rule extends to and includes statements the nature of conditions precedent taking to the liability effect of the certificate and there making unless, under effect at the time of the delivery or certificate, applicant inbe health, the certificate shall not take effect there shall be lia no bility Metropolitan thereunder. Co., v. Life Ins. supra.] [Hicks It will be noticed that the defendant nowhere its answer al leges any of the matters claimed misrepre it to have been made, sented the insured in her at the time it insured; contributed to or caused anywhere the death of the nor is it shown in the record evidence and the admissions any trial of such matters contributed to or caused the death According of the insured. Latham, testimony Hr. her attending physician during her last illness the time death, ptomaine the cause of her death was from poisoning or food poisoning, developed colitis and diarrhea —she could not con trol her testimony bowels. His is not denied and therefore is to be taken as true. There is no claim in the evidence the deceased suffering ptomaine poisoning diarrhea, or colitis and died, which she at the time she made the for the cer any thereto; tificate sued prior time any nor is there any any evidence that sickness from cause whatever with which might have been afflicted at the time that the was or at time thereto contributed to or caused her death or *10 any in superinduced manner the colitis and diarrhea from which she any died. Nor there in evidence anything the record that might suffering from which she have been or with which was she in thereto the made or application prior at tbe time diseased any manner contributed from which died in duced the trouble or if had made insured her death. It is therefore clear even they by and were the defendant the misstatements contended yet record untrue, showing made the that false and there is no be material or misrepresentations complained of ever became such question rights plaintiff and an issue the upon came or the depended real, dispute was made to defendant so that a bona fide cause of the plaintiff exist and defendant as to the thereon between demand as entitled to insured’s death and to whether paid by terms of the agreed to the and to receive the amount liability upon any not certificate or as to whether there was was part the therefor. the the appears it record that insured
Further, nowhere the any misrepresentations alleged concerning the made of the state making application at the or to the her health the time body, health effect'that such time she was sound in mind, injury had last been sick four free that she disease years prior the thereto or that she had never had disease of charged in stomach, trouble, or defect bowel other or ailment as the answer. alleged questions thereto,
The in the asked answers application, claimed now to be false and to have by insured, upon not appear do or endorsed the signed solely appear application. plaintiff, but on the The who trial, insured, testified, that application well wholly every detail, by out, made defendant’s out; soliciting agent, took it that who and made questions only agent, ques- three were insured asked name, age, beneficiary; tions related to her and the name of the questions that no asked of her were all about condition Upon being questions health. attention called to the and an- his appearing in the he swers stated none of answers appearing there were but the same agent himself; agent applica- were made filled the sign everything wife, insured, tion out told it, his signed right; thereupon reading that she it was all without it or having her; signed it he, plaintiff, read to that likewise reading having Upon trial, with her it or it read. without plaintiff produced the certificate sued introduced it copy No the application appears evidence. thereon or was intro- him in therewith. The pro- duced connection part duced and introduced evidence as a copy Neither cross-examination. it nor a thereof shown custody have or in the record ever to been delivered to of the testimony as to or the insured. *11 234 by whom np made and application thus
manner in which said signed is not denied the under which it circumstances to demurrer, is therefore and, purposes the for the of a record (cid:127) taken as true. the except to The statements contained beneficiary there name name the age and the of the insured and the of fact, as taken, in in, only insured, while of must be nominally those the under, circum cannot, the the defendant itself and statements of insured. stances, plaintiff or be held to be the statements of the of the knowl App. 20 Mo. Thé Co., v. Hartford Fire Ins. [Thomas 150.] edge respect questions agent of with the and the the to ques thereon, appearing and answers and made as to whether such tions in fact asked were fact made were and such answers im thereof, is insured or as the truthfulness or to untruthfulness defendant; puted knowledge to the defendant and becomes of may say, and it heard death of the insured not be after that it having years, after collected the thereon for assessments made issued the fact that the insured certificate reliance having at truthfulness, answers and reliance their all times that such was fact. There was no evidence known not the agent agent of collusion between and the or between the (Mo. plaintiff. App), and the v. Ins. Central Mutual Ass’n [Coleman 22; (2d) 52 S. W. v. 191 Mo. Forresters, Kribs United Order of App. 524, 766; 177 S. W. v. Co. Rissler American Central Ins. Louis, 755; St. 51 Co. 366, Mo. S. W. Shell v. German Ins. App. 644; Ins. Freeport, Breckinridge Mo. v. American Central Co., 87 71; Mo. c. Co., l. v. Hartford Ins. Thomas Fire supra.] n It is if show true there had been evidence the record ing the insured the condition of her health at the time prior in the man thereto ner particulars alleged by and that she was not had not been in health at such but been time and was the time the application prior thereto unsound health alleged by afflicted with the sicknesses or diseases defendant and any of them caused or contributed her then death, the condition of her health time was made and thereto and whether she was afflicted the sicknesses or men diseases them, tioned or at such time, caused or contributed death, rights would have been material right payment pro of one to demand of the sum paid by vided to be right terms of the other to payment thereof, refuse answer had the further tendered by any issue that her death had caused contributed to of such misrepresented. ap so matters But no such state of facts pears from plaintiff’s ease, the record in and no such issue as referred appears tendered the answer. controversy and canse, the record in this
Under the wholly matters as to immaterial alleged in the answer was over rights parties upon which insured’s death cause of the unavailing com a basis for the depended, and therefore was up in the set and satisfaction and the accord promise settlement answer as defense. exe written release precluded is not The mere recital by him, in the record of his case. found cuted *12 himself and de arisen between dispute fide
therein that bona as to the condition representations fendant, upon based insured’s making is not of the time the of her health at the of ap dispute must a bona fide sufficient. The facts which make it dispute not be or Whether it was a bona fide pear from the record. opinion. mere not of question upon fact the evidence and comes a of appear; must and also dispute it bona fide The facts in which make any fact upon having a contention appear party it that the must grounds for time, reasonable had, at the or facts shown must have fact facts. The statement believing in of each the existence the representations of upon based dispute such was the release that making time of the condition of her health the insured as to the rep No such own seeds of destruction. of the carries its case. There are in the record of the resentations shown upon any matter shown was, legal effect, dispute no therefore The release is overloaded record have been material. the face, the record weight. valueless, falls It is on its when of its own manner to; validity in a direct is attacked and its looked reply. in his World, Knights of Maccabees the The case Zinke v. of the of bar. The facts 1, wholly 205 S. W. unlike the case Mo. upon record upon appeared arose the therein which which the insured the manner in the trial. Such facts concerned whether de by suicide or death, otherwise, his whether came to his contending that he came to grounds for fendant had reasonable payment, provided for the therein policy suicide. The death It his wife. insured, a benefit of $1000 upon death of the insured sui that, of the death of the provided in event further receive beneficiary paid should should be but cide, no benefit “Life equal contributed to to twice the amount an amount so contributed Twice the amount the insured. Benefit Fund” Zinke shows that insured, The record by Zinke, the $578.40. widow, case, his plaintiff in that 31, 1913, and that the died March af consisting affidavit, of her own proofs death submitted jury, coroner’s attending physician, verdict of the fidavit together inquest, with sworn statements taken at the affidavits belonged, in each of lodge insured the local to which the officers of insured’s death submitted the cause papers so given receipt suicide. The defendant in that case, proofs, such bene issued and delivered to the therein, ficiary lia policy, $578.40 under the its check in as its the sum of bility policy beneficiary, upon under the for suicide claims. Such acceptance check, receipt of said defendant executed her acknowledged Avherein she check to have been for full governing amount for defendant sui was liable under its laws cide Subsequently, beneficiary claims. asserted that she w$s to an -upon theory $400 entitled additional insured was not a suicide and that entitled to full benefit under policy in $1000; the sum of and she made demand therefor. The advising defendant refused payment, paid her that it had her the amount policy being due under said claim claim—and a suicide —her nothing owed her Thereupon, plaintiff' in more. said cause gave notice that she denied the a suicide and that her original statement mistake, that he awas suicide was the result of brought seeking recovery suit balance due her. It was plaintiff having held accepted $578.40 in the sum of payment claim as a discharge suicide claim lia bility-of such claim under policy, the defendant was not otherwise liable to her policy under the bene as and *13 fit; that such payment, record, under the facts in the amounted to an accord and satisfaction might of claims that have arisen under policy; that, under the facts and circumstances shown in the record, there was a substantial doubt as to amount due the bene ficiary, sufficient to support upon or settlement dispute arising concerning same. The matters over dispute arose were matters shown to have been rights material to the of both and defendant. showing No such is made here. The case is point therefore not in authority for defendant’s con tention the instant case. In the case of Painter v. Prudential Company Insurance (Mo. App.),
America (2d) case, S. W. dispute, as in this alleged representations arose over made the insured in her ap plication as to the condition of her health at and to the time such and the issuance of the policy, in which applica tion she stated time, at such that, good her health was no physical defects or infirmities existed and that she had never suf fered from heart ulcers, dyspepsia. disease, The defendant claimed gathered to have information, subsequent to insured’s death, to the that, effect notwithstanding statements, was, at the time of making her application, not health but, at such time and prior thereto, suffering with heart disease, which afterwards caused her death. Proof of insured’s complained statements made trial; proof and also was made that such statements were false and that the condition of her health represented not as hand, that, upon ber at of the but the time other prior thereto, suffering at such time she had heart and that her death was contributed disease to and caused such appears, case, heart It thus dispute disease. rights
with reference to matters shown to material of the be parties controversy arose, at the time the- defendant was possession of sufficient evidence insured’s ill-health from heart (from disease at the time she made the which heart died) justify dispute disease she afterwards a plaintiff’s claim deny liability and to thereon. Such appear is not made to in the case at bar. In words, other facts were shown in that case from it could found that fide, was bona mate over matters rial rights both plaintiff which the rights parties depended. of both Such cannot be said to be true The the instant case. ease Painter v. Prudential Com Insurance pany authority of America cannot therefore be held for defendant’s contention. proof
Where the burden of lies to make out the-defense of an accord only is, and satisfaction question is immaterial here. The appear “Did defense out case?”
For the reasons hereinbefore we stated, are constrained to hold wrongly ruled; that the demurrer the court below was given requested was error to have defendant’s instruction direct ing behalf; verdict its and that the court likewise re erred in fusing plaintiff’s motion set aside the nonsuit taken and in re fusing grant sustained, new trial. The motion should have been granted. judgment and a new trial below accordingly re versed, C., and the cause Campbell, is remanded for new trial. concurs.
' PER opinion foregoing adopt- CURIAM: The isC., REYNOLDS, judgment opinion ed court. The reversed and the cause remanded for new All trial. concur. *14 George
State of Missouri ex Johnson, Relator, rel. C. v. Charles Respondent. City W. (2d) W. Regan, 76 S. Clerk, etc., 736. City Appeals.
Kansas Court of November