Otto v. Met. Life Ins. Co. , 228 Mo. App. 742 ( 1934 )

In considering the opinion in this case I have had considerable hesitancy in approving that part of the opinion holding, as I view it, that all findings on vexatious delay should be disallowed because there was "no evidence" of vexatious delay, whereas there was evidence that the proofs of death were taken and submitted to the company by the local agent, which he had obtained by having plaintiff to sign them in blank, and which he afterward filled out himself wherein he stated things that the company relied upon in denial of liability. It is my view that since the blank proofs of death were sent by the company to the local agent, with directions to secure them, and that he purported to obtain them from plaintiff, and then sent them to the company, the company was in law affected by any knowledge of the local agent as to any fraud in obtaining such proofs. And hence the evidence hereinabove referred to could not be regarded as "no evidence" of vexatious delay. My view was (and is yet) that under the circumstances the local agent in obtaining these proofs was the company's agent, acting within the scope of his authority, and his knowledge in that situation was company knowledge.

If I understand the opinion in State ex rel. Continental Life Ins. Co. v. Allen, 303 Mo. 608, l.c. 619-21, it is not applicable here. In that case, there was no showing of fraud on the part of the agent, nor did it clearly appear that he was acting in the scope of his authority; and in addition to this, his alleged notice was of conditions existing prior to the time of that which was done, which was claimed to give the company knowledge. In the case at bar, however, the blank proofs of death were sent to the agent with directions to obtain the proofs and return to the company. He did so, but according to plaintiff's evidence (which to my mind made the question of vexatious delay, on that evidence, one for the jury) he perpetrated a fraud on her; and in this situation his acts and knowledge were those of the company; and if the jury found this were true, it would be sufficient evidence to justify a verdict of vexatious delay unless there were other matters in the case which, of themselves, made the question of liability doubtful and one which the defendant had the right to have litigated. For the reason that such seems to be the situation in the case at bar, I concur in approving the disposal of the case made by the opinion.