Lavin v. Empire Life Insurance Company

Decision Date28 April 1903
PartiesTIMOTHY LAVIN, Appellant, v. EMPIRE LIFE INSURANCE COMPANY, Respondent
CourtMissouri Court of Appeals

Appeal from St. Louis City Circuit Court.--Hon. Wm. Zachritz, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

James J. O'Donohoe for appellant.

(1) The charge that the assured made false statements in his application for the policy in dispute is not sustained, and even if it were, it is still incontestable that, unless the matter represented shall have actually contributed to the contingency on which the policy is to become due, it is not deemed material. Sec. 7890, R. S. 1899. And the respondent can not defend on that ground since it has not deposited in court for the benefit of plaintiff the premiums received on the policy in question. Sec. 7891, R. S. 1899; Floyd v Ins. Co., 72 Mo.App. 461; Thauler v. Mut. Life Assn., 67 Mo.App. 505; Jacobs v. Omaha Life Assn., 142 Mo. 49. (2) Even if misrepresentations appeared in this case, still it was absolutely essential for respondent to plead and prove that the policy would not have been issued had the respondent known the real state of facts. Christian v. Ins. Co., 143 Mo. 465. (3) Laws 1897 p. 129, makes companies doing business on the assessment plan subject to section 7890, Revised Statutes 1899, and to section 7891, Revised Statutes 1899. So that with respect to misrepresentations and to deposit of premiums in court for the benefit of plaintiff, it is and was, when the policy in question was issued, unimportant whether the respondent was doing business on the assessment plan or as an old line company. Sec. 7910, R. S. 1899.

George E. Egger for respondent.

(1) But, even if this were not the case, section 7890, Revised Statutes 1899, could not apply in this case, for the reason that the policy, as well as the application, makes the answers propounded in the application warranties. Ashford v. Life Ins. Co., 80 Mo.App. 638; Aloe v. Mutual Reserve, 147 Mo. 561; Linz v. Mass. Mutual Life, 8 Mo.App. 364. (2) If section 7890, Revised Statutes 1899, does not apply to this case, for the same reason section 7891, Revised Statutes 1899, relating to premium tender, does not apply.

BLAND, P. J. Reyburn and Goode, JJ., concur.

OPINION

BLAND, P. J.

--The suit was on a policy of life insurance, dated March 8, 1900, for $ 1,000, issued by the defendant, a New York corporation, on the life of Edward McGuire, payable to his estate. The defense was that the policy was procured by false and fraudulent representations made by McGuire, in respect to the condition of his health and in respect to his habits at and prior to the date of his application for the insurance and in respect to having obtained other insurance on his life, and for breach of warranties contained in the policy in respect to the same matters.

The issues were submitted to the court sitting as a jury. No declarations of law were asked or given, neither was there a special finding of the facts. The court found the issues for the defendant. In this state of the case the only question for review here is, whether or not there is substantial evidence in the record to support the finding of the court.

The plaintiff made proof that the policy was assigned by McGuire to him a short time after it was issued, for a consideration in excess of the face value of the policy and by the consent of the defendant company.

It was admitted that proofs of loss had been duly made.

For the defendant it was shown that the assured represented and warranted that he had not been an inmate of any hospital, and that he never had any local disease or infirmity; that his habits were sober and temperate; that he did not use ardent spirits, wine or malt liquors, except beer, which he drank with his meals.

The defendant introduced evidence, which was not contradicted, that McGuire was admitted as an inmate of the City Hospital in St. Louis, September 11, 1899, and that at that time he was suffering from alcoholism, malaria and chronic Bright's disease, but only remained five or six days in the hospital and was discharged at his own request; that he was again admitted to the same hospital on November 6, 1899, suffering with the same diseases as before, and syphilis, and remained in the hospital as a patient for about nineteen days, and was not cured but his condition was somewhat improved and he was again discharged at his own request; that at the time he made his application for the insurance, he had a policy on his life for $ 500 in the Prudential Life Insurance Company, of Newark, New Jersey, which policy was paid after his death to his assignee and the holder of the policy.

In respect to his habits, the evidence on the part of plaintiff is, that he had been for several years prior to 1900, an habitual drunkard, and continued in this habit until about the time of his death, which occurred at St. Mary's Hospital, city of St. Louis, January 6, 1902.

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