Whitmore v. Supreme Lodge Knights & Ladies of Honor
| Citation | 13 S.W. 495,100 Mo. 36 |
| Parties | Whitmore, Trustee, et al., Appellants, v. The Supreme Lodge Knights and Ladies of Honor |
| Decision Date | 24 February 1890 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.
Affirmed.
R. A Bakewell for appellant.
(1) A person has an insurable interest in his own life, and has a right to procure a policy on the same, and to have it made payable to any one whom he may appoint, although the beneficiary may not have any pecuniary interest in the continuance of the life of deceased, nor be of kin to him. It is not relationship between the insured and the beneficiary that is to be invoked to support the insurance. Ins. Co v. Allen, 138 Mass.24; Campbell v. Ins. Co., 98 Mass. 389; Lemon v. Ins. Co., 38 Conn. 294; Fairchild v. N. E. M. L. Ass'n, 51 Ver. 613; Clark v. Allen, 11 R. I. 439; Marcus v. Ins. Co., 68 N.Y. 625; Olmstead v. Keyes, 85 N.Y. 993; Franklin v. Ins. Co., 103 N.Y. 166; St. John v. Ins. Co., 13 N.Y. 31; Rawler v. Ins. Co., 27 N.Y. 282; Ben. Ass'n v. Blue, 120 Ill. 121; Bursinger v. Bank, 67 Wis. 75; Clark v. Durand, 12 Wis. 223; Langdon v. Ins. Co., 14 F. 272; Mutual Life v. Armstrong, 117 U.S. 501; Ashley v. Ashley, 3 Simons, 149. (2) The fact that the assignee of a life policy has no insurable interest in the life does not avoid the assignment. It may be a circumstance to be considered in determining the character of the transaction; but it is not conclusive. Ins. Co. v. Allen, 138 Mass. 24. (3) One has a right to have his own life insured with the money of another, and to assign the policy to him absolutely. One may insure his own life and present the policy to a friend. Cunningham v. Smith's Adm'r, 70 Pa. 450; Barber v. Morris, 2 Moody & Rob. 62; Ins. Co. v. Robertshaw, 2 Carey, 161; Elliott's Appeal, 14 Wright, 80. (4) A valid policy, once made, remains valid if the conditions are complied with. Valton v. Assurance Co., 20 N.Y. 32. (5) The refusal to give an instruction, correct and applicable to the case, is error, where the instructions given do not fully cover such theory. Coleman v. Roberts, 1 Mo. 97. (6) Ambiguous instructions, and such as are calculated to confuse and mislead the jury, should not be given. Otto v. Bent, 48 Mo. 23; Greer v. Parker, 85 Mo. 107; Belt v. Good, 31 Mo. 128. (7) Misstatement of a fact will not avoid the policy, unless the fact, if correctly stated, would have increased the risk, induced the insurer to decline it, or enhanced the premium. The false statement must be wilful and material. Marion v. Great Republic, 35 Mo. 148; Boggs v. Ins. Co., 30 Mo. 63. (8) Instructions should be applicable to the case made by the pleadings and issues. Vanhooser v. Berghoff, 90 Mo. 487; Camp v. Heelan, 43 Mo. 591; Quinlivan v. English, 44 Mo. 46; O'Fallon v. Bienvenue, 3 Mo. 405. (9) Judgment will be reversed for the admission of incompetent testimony, where it is probable that an instruction to disregard it failed to remove the impression made. Cobb v. Griffith, 12 Mo.App. 130; Weil v. Poston, 77 Mo. 284; Howe Machine Co. v. Rosine, 87 Ill. 105; State v. Daubert, 42 Mo. 242. (10) Undue influence, to avoid a contract, must have been actually exerted, and in such a way as to substitute the intention of the contracting party for that of the person charged with procuring the contract by fraud. Jackson v. Hardin, 83 Mo. 175; Ketchum v. Stearns, 76 Mo. 396; Sunderland v. Hood, 84 Mo. 293.
S. Hermann and Valle Reyburn for respondent.
(1) This court will indulge every presumption in favor of the judgment of the court below; and the party who complains of an erroneous ruling, whether in the admission of testimony, or in the giving of instructions, must point out clearly and distinctly the specific error complained of, the objections made thereto, the adverse ruling and his exceptions thereto. The burden is on the complaining party to prove the error without strained or doubtful inference. Peck v. Chouteau, 91 Mo. 139; McMillan v. State, 13 Mo. 33; Douglass v. Stevens, 18 Mo. 368; Houston v. Lane, 39 Mo. 498; State v. Tucker, 84 Mo. 26; State v. Brown, 75 Mo. 317. (2) Unless the error complained of is brought to the attention of the trial court, in the motion for new trial, the appellate court will disregard the complaint. State v. Preston, 77 Mo. 295; Matlock v. Williams, 59 Mo. 105; State v. Degonia, 69 Mo. 490. (3) Courts will enforce all reasonable laws and rules established by benevolent societies for their guidance, and for the method of participation in their relief funds, unless such rules are violative of the laws of the state. Holland v. Taylor, 16 Ins. Law Jour. (Ind.) 609; Coleman v. Sup. Lodge, 18 Mo.App. 189; Osceola Tribe v. Schmidt, 47 Md. 98; Aid Soc. v. Leopold, 101 Pa. 111; Borgraefe v. Sup. Lodge, 22 Mo.App. 127; Benevolent Soc. v. Baldwin, 86 Ill. 479; Yoe v. Howard Ass'n, 63 Md. 90; Dolan v. Good Samaritan, 128 Mass. 439; Karcher v. Sup. Lodge, 137 Mass. 368. (4) Evidence tending to show that the beneficiary in a policy effected insurance upon the life of the assured in other companies, at or about the same time, is admissible in support of a defense, that, in obtaining the insurance in question, the object of the beneficiary was to defraud the insurance company. Ins. Co. v. Armstrong, 117 U.S. 591; Castle v. Bullard, 23 How. (U. S.) 173; Lincoln v. Clafflin, 7 Wall. 132; Bottomly v. United States, 1 Story, 135. (5) Where a policy, or the application for a policy, contains the provision, that, if the proposal, answers and declarations should be, in any respect, false, fraudulent or untrue, the policy shall be void, such statement must, by agreement of parties, be absolutely true; and, if untrue, in any respect, whether material to the risk or not, the policy is void. Ins. Co. v. France, 91 U.S. 510; Jeffries v. Ins. Co., 22 Wall. 47; Brockway v. Mut. Benefit Co., 9 F. 249; Goucher v. Ins. Co., 20 F. 596; Carrigan v. Ben. Ass'n, 26 F. 230; Davy v. Ins. Co., 20 F. 482; Lintz v. Ins. Co., 8 Mo.App. 372. (6) Where, through relationship, or some other cause, a beneficiary has an insurable interest in the life of the party insured, payment of premiums by such a party is perfectly lawful; but, where no such insurable interest exists, payments by the beneficiary create suspicion that the policy is a cover for a wagering contract, and courts properly direct the attention of juries to this element in the transaction. Fairchild v. Life Ass'n, 51 Vt. 624; Cunningham v. Smith, 70 Pa. 458; Ins. Co. v. Schaeffer, 4 Otto, 457; Ins. Co. v. France, 4 Otto, 561. (7) A party cannot complain of error in instructions given by the court if the instructions offered by him contain the same error. McGonigle v. Daugherty, 71 Mo. 259; Smith v. Culligan, 74 Mo. 387; Bank v. Hammerslough, 72 Mo. 274; Harris v. Hays, 53 Mo. 90.
OPINION
-- The pleadings in this cause are, in substance, as follows: --
Plaintiffs, Benjamin T. and Marie E. Whitmore, are husband and wife and defendant is a corporation. On the twenty-second of November, 1883, Mary A. Mudd was a member of Nonpareil Lodge, number 592, of defendant in St. Louis, and entitled to participate in the relief fund of said order to the amount of one thousand dollars, said sum to be paid to plaintiff, Marie E. Whitmore, as trustee of Mary L. Whitmore. Defendant issued its benefit certificate under seal to said Mary A. Mudd, for one thousand dollars, payable on death of said Mudd to said Marie E. Whitmore, as trustee as aforesaid. Mary A. Mudd complied with all the conditions of said certificate, paid all assessments, etc., and died on the twenty-first of July, 1884, a member of said order, in good standing. The certificate is filed as Exhibit A. Plaintiff asks judgment for one thousand dollars. The petition has a second count upon another certificate for two thousand dollars, filed as Exhibit B.
The answer, after a general denial, alleges that the deceased, Mary A. Mudd, procured the insurance in question by false and fraudulent representations as to her health; and by false answers to the questions put to her by defendant as to the relationship of the beneficiary to her, as to the cause of death and age of her relatives. These answers are set forth in full, and alleged to have been as to material matters. The answer further sets up that Mary A. Mudd was of weak mind, and was induced by fraudulent representations and influence of plaintiffs, Benjamin T. and Marie E. Whitmore to become a member of defendant; that Benjamin T. Whitmore, being a physician, caused himself to be made a medical examiner of defendant, and, as such, witnessed and subscribed the application of said Mary A. Mudd, and fraudulently recommended her to defendant as a good subject for insurance; and made false statements to defendant as to her health; and that he and his wife, by fraudulent acts and representations, induced the lodge of defendants to receive said Mary A. Mudd to membership, and procured further insurance on her life to the amount of nineteen thousand dollars, within eight months from the date of the certificate in suit. That Mary L. Whitmore, the cestui que trust, is the infant daughter of plaintiffs, and that the insurance in question and the other insurance was obtained by a fraudulent conspiracy of plaintiffs. That Mary A. Mudd lived with plaintiffs, and that her death was caused by their ill-treatment and neglect of her, and that her initiation fee and assessments were advanced for her by plaintiffs. The answer also denies that Mary A. Mudd was of kin to either of plaintiffs or to their daughter, the beneficiary in question under the certificates in suit.
The replication specifically denies the new matter set forth in the answer.
It is admitted by the...
To continue reading
Request your trial