83 Mo. App. 215 | Mo. Ct. App. | 1900
-Plaintiff made application to the defendant for a policy of insurance on his life. Eor the first year’s premium of three hundred and thirty-four dollars, he executed his negotiable promissory note and delivered it to M. T. Brown, a soliciting agent of defendant, who immediately discounted the note in bank. At maturity the plaintiff paid the note. Contemporaneously with making the application and giving the note, plaintiff was given the following receipt contract:
“No. 1584.
COVENANT MUTUAL LIRE INSURANCE CO. OE ST. LOUIS.
Laclede Building, Olive and Fourth Streets.
$334.
“Received Hannibal, Oct. 20, 1.89Y, of R. H. Stilwell Three Hundred and Thirty-four Dollars, being the first premium on a proposed policy of insurance for $10,000 dollars, on the life of............for -which application has this day been made to the Covenant Mutual Life Insurance Company, of St. Louis, said policy of insurance to take effect and be in force from the date hereof. Provided, that said application is approved by the company and a policy issued; but should the applicant be rejected, the company shall incur no liability whatever, and the amount paid as above shall be returned to said R. H. Stillwell upon a surrender of this receipt.
“The agreement herein contained, to return said payment, will not be binding on said company unless it is notified within sixty days from the date hereof, at its office in St. Louis, Mo., that said policy has not been delivered nor payment returned.
Countersigned............,189 M. T. Brown, Agent.
“Void unless issued and countersigned on or before the*220 first day of January, 1897, by M. T. Brown, Agent. O. E. Pilling, Secretary.”
The policy of insurance was not made and delivered to plaintiff within the time agreed on; he refused to accept it when delivery was tendered, and brought suit on the receipt contract, above set forth, to recover the amount he had paid on the first year’s premium.
The answer of defendant, omitting caption, is as follows:
“Now comes the defendant, and for amended answer herein admits that it is a corporation, duly incorporated as in the petition stated. Admits that plaintiff on October 20, 1897, made application for insurance through M. T. Brown, defendant’s authorized agent, for ten thousand dollars, and executed and delivered his promissory note for $334 for the first annual premium, as alleged in the petition; and that said note was negotiated and cashed at -the Bank of Hannibal. Admits the execution and delivery to plaintiff of the receipt and promise obligatory No. 7584, dated October 20, 1897, and filed with the petition.”
Defendant denies each apxl every other allegation in said petition contained.
Further answering, defendant says the plaintiff made the application for insurance named in the petition in writing and delivered the same to said M. T. Brown, a copy of which application is herewith filed, marked “A.” That by the terms of said application said plaintiff promised and agreed with defendant that the “application, together with the answers made to the medical examiner in continuation of and forming part of the application, shall be a consideration for and the basis of the contract of the Covenant Mutual Life Insurance Company under any policy issued under this application. * * * That the company shall incur no liability under this application until it has been received and approved, the policy issued thereon by the home office, and the premium
That, in compliance with said contract, the plaintiff, on the twenty-first day of October, 1897, submitted himself to a medical examiner, and in reply to questions, among other answers, said he has a stricture but it gives him no trouble; but plaintiff then and there declined and refused to allow said medical examiner to duly and fully examine him in reference to said stricture; that owing to such conduct on part of plaintiff, the medical director of defendant, on October 23, 1897, did not advise the risk and the issuance of a contract of insurance on his said application, and the plaintiff was duly notified thereof.
Defendant further says that on the second day of November, 1897, the said plaintiff contracted and agreed with defendant, through its agent, to reapply for insurance on his life for said sum of $10,000, and did make such application and on said date again submitted himself for examination to a medical examiner, and, among other answers given to said medical examiner in naming the diseases he had been afflicted with, said, “he had stricture of the urethra nine or ten years ago; was told by a. doctor he had stricture; was never treated for it and at this time passes a full stream of water without pain.” But, said Biehard H. Stillwell positively declined and absolutely refused to permit the medical examiner to insert a sound or instrument to determine the character of said stricture, nor would he in anywise submit to a due and proper medical examination in that behalf. Said Stillwell in each of said medical examinations warranted thaji to his best knowledge and belief he was in sound physical condition and a proper subject for life insurance. Defendant says that said conduct on part of said Stillwell interfered with, delayed and retarded it in completing and perfecting its said contract of insurance on his life, but that the same was
That plaintiff did not notify defendant that the policy had not been issued and delivered under the terms of the receipt and promise obligatory, No. 7584. Wherefore defendant asks leave to go hence with its costs in this behalf expended.
The issues were submitted to a jury, who returned a verdict for the plaintiff. After unsuccessful motions for new trial and in arrest, defendant appealed.
By his application plaintiff agreed, among other things, to submit to a proper medical examination, and he warranted that his answers to questions of the medical examiner to be true. It was also agreed that no policy should be issued or the defendant bound on the contract, until the medical examination should be examined and the risk approved by defendant’s medical director at the city of St. Louis (the home office of defendant). On ^October 21, 1897, plaintiff presented himself for medical examination to Dr. Chowning at Hannibal, Missouri (the place of his residence). In reply to a question by Dr. Chowning, he said he had stricture, but that it gave him no trouble. Whether the physician required him to submit to a physical examination of the parts affected, is left in doubt from the evidence; no such examination, however, was made by Dr. Chowning, but he recommended the risk and forwarded his examination to Dr. F. A. Stevens, defendant’s medical director of St. Louis. Dr. Stevens refused to advise the risk, and plaintiff and Brown, the agent at Hannibal, were advised of this action on the part of Dr. Stevens. On receipt of this information' Brown advised plaintiff to submit to a second examination. Plaintiff readily as
“Hannibal, Mo., Dec. 15, 1897.
“Covenant Mutual Life Insurance Co.,
St. Louis, Mo-.
“Gentlemen: — -I hold your receipt No. 7584 of date Oct. 20, 1897, for $334 being one year’s premium on a proposed policy for $10,000 insurance- on my life, signed by M. T. Brown, Agent, and O. E. Pilling, Secretary. Delay in issuance of this policy indicates to me the matter is still in abeyance. Pending this abeyance, I desire now to refuse to accept the insurance and ask return of note given for amount of premium. Please comply at once.
“Respectfully,
“R. H. Stillwell.”
The only answer he received was the policy. On the
Defendant also insists that error was committed by the rejection of the conversation had between Brown and Dr. Stevens, about what Dr. Stevens had done, or was doing, toward investigating the application of plaintiff for insurance. Its contention is that the conversation was a part of the res gesta, and should for that reason have been admitted. The rejected testimony which defendant offered is not set out in the bill of exceptions, and we are unable to say whether it was or was not admissible as a part of the res gesta.
Discovering no reversible error in the record, the judgment is affirmed.