The State ex rel. John Hancock Mutual Life Insurance Company v. Allen

• Decision Date: 15 March 1926
• Citation: 282 S.W. 46,313 Mo. 384
• Parties: THE STATE ex rel. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

282 S.W. 46

313 Mo. 384

THE STATE ex rel. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

March 15, 1926

Record quashed.

Leahy Saunders & Walther and J. L. London for relator.

(1) The court erred in striking out defendant's cross-bill. (a) A motion to strike out may fill the office of a demurrer and be so treated, where it is, to all intents and purposes, a demurrer, and dispositive of the whole case, as a matter of law. State ex rel. Natl. Bank v. Ellison, 266 Mo 423; State ex rel. v. Owens, 207 S.W. 243; Shohoney v. Railroad, 231 Mo. 148; McAllister v Graham, 206 S.W. 394. (b) The cross-bill converted the action into an equitable action. Carter v. Ins. Co., 275 Mo. 84. (2) The court erred in overruling appellant's demurrer at the close of the whole case. (a) The assured according to all the creditable evidence in the case, had cancer at the time she applied for insurance. Oglesby v. Railroad, 150 Mo. 137; Carter v. Current River Ry. Co., 156 Mo. 635; Guthrie v. Holmes, 272 Mo. 215. (b) The evidence in the case showed conclusively that the assured at the time of the delivery of the policy was not in the state of insurability shown in the application. Burgess v. Pan-American Ins. Co., 230 S.W. 315; Guthrie v. Holmes, 272 Mo. 215. (c) Proofs of death filed by a beneficiary of a life insurance policy which show that the assured died of a disease which he had at the time of his application are conclusive unless explained away or contradicted. (3) The court erred in giving and reading to the jury Instruction 1. It disregards the question of the insurability and state of health of the assured at the time the policy was delivered, and considers only the defense of misrepresentation in procuring the policy. Enloe v. Am. Car & Foundry Co., 240 Mo. 443; Bluedorn v. Mo. Pac. Ry. Co., 108 Mo. 439; Patterson v. Evans, 254 Mo. 293; State v. Stubblefield, 239 Mo. 526. (4) The court erred in giving and reading to the jury plaintiff's Instruction 2. It disregards the defense that the assured was not in the state of insurability shown in the application, is misleading to the jury in singling out only the defense of misrepresentations and disregards the equally important defense of insurability herein mentioned. Enloe v. Am. Car & Foundry Co., 240 Mo. 443; Bluedorn v. Mo. Pac. Ry. Co., 108 Mo. 439; Patterson v. Evans, 254 Mo. 293. (5) The court erred in giving and reading to the jury plaintiff's Instruction 4. Burgess v. Pan-American Life Ins. Co., 211 S.W. 114, 230 S.W. 315. (6) The court erred in giving and reading to the jury Instruction 5. Burgess v. Pan-American Life Ins. Co., 230 S.W. 315; Kern v. Legion of Honor, 167 Mo. 487. (7) Testimony regarding the examination of a doctor for an insurance company and the surrounding circumstances and facts, including the effect of the statements of the applicant, are admissible. State v. Long, 257 Mo. 199.

S. C. Rogers for respondents.

(1) This court obtains the evidentiary facts from the appellate opinion. State ex rel. v. Allen, 250 S.W. 580; State ex rel. v. Cox, 250 S.W. 551. Except that any pleading, instruction or written instrument referred to may be considered. State v. Reynolds, 290 Mo. 362; State ex rel. v. Ellison, 223 S.W. 671. An alleged error not assigned or considered by the Court of Appeals will not be reviewed by the Supreme Court. State ex rel. v. Trimble, 250 S.W. 384; State ex rel. v. Allen, 240 S.W. 117; State ex rel. Light Co. v. Trimble, 262 S.W. 357; Hurlburt v. Mo. Pac. Ry. Co., 284 Mo. 397. (3) The only question to be considered is whether taking the facts as found by the Court of Appeals, its conclusions of law are in harmony with or contrary to the latest ruling of the Supreme Court. State ex rel. v. Trimble, 250 S.W. 384; State ex rel. Henry v. Allen, 263 S.W. 190; State ex rel. v. Trimble, 262 S.W. 357; State ex rel. v. Allen, 262 S.W. 43; State ex rel. v. Allen, 291 Mo. 206; State ex rel. v. Allen, 294 Mo. 214. (4) Report of relator's examining physician is sufficient contradiction of proofs of death and makes it a jury question. Keller v. Ins. Co., 198 Mo. 440; Burgess v. Pan-American L. Ins. Co., 230 S.W. 315; Natl. Bk. Com. v. Laughlin, 264 S.W. 706. Proofs of death are nothing more than opinion of a physician and entitled to no more weight than his testimony. 2 Bacon on Life & Accident Ins., p. 1600, sec. 65; Barker v. Met. Ins. Co., 198 Mass. 375. (5) Instruction 1 is correct. State ex rel. Jenkins v. Trimble, 291 Mo. 227; State ex rel. Ambrose v. Trimble, 263 S.W. 840; R. S. 1919, sec. 6142. (6) Speculate-or guess-Instruction 4 is proper. Griffith v. Cont. Cas. Co., 253 S.W. 1043. Relator cannot inject a new and entirely different theory in the case on appeal. Brunswick v. Standard Acc. Co., 278 Mo. 154; Paramore v. Campbell, 245 Mo. 287; Hurlburt v. Mo. Pac. Ry. Co., 284 Mo. 397.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

The relator, under the writ of certiorari issued, seeks to quash the opinion of the St. Louis Court of Appeals in the case of Oliver W. Mueller, Respondent, v. John Hancock Mutual Life Insurance Company, Appellant, 261 S.W. 709, wherein the Court of Appeals affirmed the judgment rendered by the trial court. The case as presented takes the form of an effort more to point out errors committed by the Court of Appeals, generally, than an effort to show conflict between the rulings thus made, and rulings of this court in previous and controlling decisions upon questions arising out of the same or like conditions of fact. The inquiry here must be confined within the limits appropriate to this original proceeding, and not extended over the wider field afforded by an appeal to this court.

The plaintiff sued as the beneficiary under an insurance policy upon the life of his mother, Laura Mueller. Application for the policy was made December 5, 1918; it was issued on December 28, 1918; and the insured died on March 4, 1919. The defense set up by answer and cross-bill, was, that the insured obtained the policy by false and fraudulent representations as to her state of health; that she represented herself to be in good health as far as she knew and believed, and had not been treated by a physician for nearly twenty-five years, whereas, in fact, during the year next before the making of the application, she had consulted with a large number of physicians in the city of St. Louis; and, that she knew at the time the policy was issued, she was suffering from cancer, the disease which directly contributed to or caused her death. Cancellation of the policy was asked under the cross-bill. The court sustained the plaintiff's motion to strike out the cross-bill; the case was heard as one at law; and the plaintiff had a verdict in his favor.

I. The Court of Appeals overruled the contention that the cross-bill converted the action into one in equity. This holding is in accord with the rulings of this court in Schuerman v. Insurance Co., 165 Mo. 641, and State ex rel. v. Trimble, 292 Mo. 371. Counsel for relator frankly express doubt whether, under the facts in this record, the case was convertible into a suit in equity by the cross-bill and prayer for cancellation, and they further express the opinion that the doctrine set out in State ex rel. v. Trimble, supra, in which it was held that an insurance policy cannot be cancelled after the death of the assured, is better doctrine than that announced in Carter v. Ins. Co., 275 Mo. 84. It is suggested, however, that the decision in Carter's case has not been expressly overruled, and may be controlling upon the question. It is true that Carter's case is not mentioned in State ex rel. v. Trimble; but, in the latter, the rule announced in the Schuerman case was stated and expressly adhered to, which necessarily overruled what was said in Carter's case on that subject, at least beyond its close application to the distinctive facts in that case. There is no conflict between the ruling of the Court of Appeals and the latest and controlling decision of this court, upon the question presented by this cross-bill.

II. The relator assails the correctness of the conclusion of the Court of Appeals, which sustained the trial court in overruling the demurrer, offered at the close of the case. Relator asserts that (1) according to all the creditable evidence the assured had cancer at the time she applied for the insurance; (2) that the evidence showed conclusively she was not, at the time of delivery of the policy, in the state of insurability shown by the application, and (3) that the proofs of death, which showed that the assured died of a disease which she had at the time of the application, are conclusive, unless explained away or contradicted. For the facts we look to the opinion of the Court of Appeals, and to any pleading, instruction, or written instrument referred to therein, and cannot review as upon an appeal the evidence set forth in the abstract filed in that court. [State ex rel. Dunham v. Ellison, 278 Mo. 649; State ex rel. Raleigh Inv. Co. v. Allen, 294 Mo. 214.]

The finding is as follows:

"Plaintiff introduced the policy in evidence and rested.

"Defendant to sustain the affirmative defense set up its answer, produced, among other witnesses, nine physicians for the purpose of establishing the fact that the deceased had cancer at the time the policy was issued, and which caused her death. The following facts appear from the testimony of these physicians:

"Dr Garcia, on behalf of another insurance company, examined the deceased on January 30, 1919. At that time there was a blank filled out and signed, by Mrs. Mueller, the date being January 26, 1919. Upon objection this was stricken out and defendant saved...