84 S.W. 51 (Mo. 1904), Ijams v. Provident Savings Life Assurance Society of New York

Citation:84 S.W. 51, 185 Mo. 466
Opinion Judge:ROBINSON, C. J.
Attorney:Hollis & Fidler for appellant. Ed. E. Yates also for appellant. Wm. T. Gilbert and Karnes, New & Krauthoff for respondent.
Judge Panel:ROBINSON, C. J. Brace, Gantt, Valliant and Fox, JJ., concur; Marshall, J., dissents; Burgess, J., absent.
Case Date:December 24, 1904
Court:Supreme Court of Missouri

Page 51

84 S.W. 51 (Mo. 1904)

185 Mo. 466

IJAMS, Appellant,



Supreme Court of Missouri

December 24, 1904

Appeal from Jackson Circuit Court. -- Hon. Edward P. Gates, Judge.


Hollis & Fidler for appellant.

(1) If plaintiff, after being deceitfully induced to take this insurance, and lulled into the belief for seven years that he had what he had applied for, and until his age and physical infirmities had become such that he could get no other insurance in a reputable company, is entitled to any relief at all, then undoubtedly the second count states a cause of action. The evidence offered in support of our contention, in so far as the condition of plaintiff is concerned, shows that plaintiff's physical condition is such that he would not be accepted by any reliable company as an insurable risk. In cases of this kind the return of the premiums with interest is not the only measure of damages to which the plaintiff may be entitled. McKee v. Ins. Co., 28 Mo. 387; Smith v. Ins. Co., 64 Mo. 330; Brasswell v. Ins. Co., 75 N.C. 6; Ins. Co. v. Robinson, 54 F. 580. On the question of speculative damages, see Consolidated Coal Co v. Polar Wave Ice Co., 106 F. 798. (2) The court erred in taking the case made by plaintiff on the first count from the jury. On the undisputed evidence a case of fraud and deceit was fully made by plaintiff, and such a case as clearly presented a question of fact for the jury. There was no question raised about the sufficiency of this count in the petition and every allegation was proven. It seems to us that the citation of authorities on this proposition is useless. Wells v. Adams, 88 Mo.App. 215. As to plaintiff's right of recovery on such a count: Suess v. Ins. Co., 64 Mo.App. 1; McKee v. Ins. Co., 28 Mo. 383. The court could not have taken the case from the jury on the theory that parol evidence was inadmissible to prove this fraud and deceit. Ins. Co. v. Owens, 81 Mo.App. 201; Wright v. McPike, 70 Mo. 175; Lithograph Co. v. Obert, 54 Mo.App. 241; Hutchins v. Pettingill, 30 N.H. 30; Aultman v. Olson, 30 Minn. 450; Cagle v. Ins. Co., 78 Mo.App. 431; Laundry Co. v. Ins. Co., 151 Mo. 99 (this case overruling Jenkins v. Ins. Co., 58 Mo.App. 210, and Sharp v. Ins. Co., 51 Mo.App. 286); Wolf v. Ins. Co., 86 Mo.App. 580; Van Ravensway v. Ins. Co., 89 Mo.App. 73.

Ed. E. Yates also for appellant.

Since this case was sent to the court In Banc, the writer has discovered a case decided last year by the Supreme Court of North Carolina upon practically the same state of facts. The suit was against the same company, for the return of premiums paid on account of the same kind of fraud. Gawltney v. Provident Savings Life Assurance Society, 132 N.C. 925; s. c., 33 Ins. L. J. 72. This case is very strong authority in our favor. Indeed our case is much stronger for the plaintiff than the North Carolina case, inasmuch as there the policy holder relied alone upon oral representations of the general agent who took the application; while in our case the agreement for a "level rate" premium is written in the application (which is expressly made a part of the contract of insurance) and in addition to this the president of the company participated in the fraud by his letter inducing the assured to believe that he had a policy, the premium upon which would remain stationary. It would seem from the great similarity between the case at bar and the North Carolina case that it is a settled policy upon the part of this insurance company to deceive its policy holders as to the character and effects of their contracts. A "layman" (even if he is not induced to refrain from reading his contract) is not estopped from claiming that the contract issued to him is not the kind for which he contracted, because: 1. He is a layman and unfamiliar with the technical language of life insurance policies; 2. He had the right to rely upon the language of the application as expounded to him, especially so because it is by the words of the policy made a part of the contract; 3. Because in point of fact it is exceedingly doubtful if the language of the policy, and the table of rates therein gives to respondent the right to increase the premium; 4. Because appellant relied implicitly upon the representations made by respondent's agent and president, which they knew to be false when making them.

Wm. T. Gilbert and Karnes, New & Krauthoff for respondent.

(1) The second count manifestly grounds the ad damnum upon an injury that the law does not recognize. The general rule of recovery is that if the insured elects to rescind the contract, the measure of recovery is the premium paid. Ins. Co. v. Garmany, 74 Ga. 51; Ins. Co. v. Wright, 33 Ohio St. 533; Ins. Co. v. McAden (Pa.), 1 A. 256; McKee v. Ins. Co., 28 Mo. 383; Hedden v. Griffin, 136 Mass. 229; Bishop v. Ins. Co., 35 Mo.App. 302; Suess v. Ins. Co., 64 Mo.App. 1; Supreme Council v. Black, 123 F. 650; Moncreif, Fraud and Misrepresentations, 214. In some some cases it is hinted that if the insurance attaches for any length of time, the premiums paid cannot be recovered back. Mailhoit v. Ins. Co., 32 A. 989; Zallee v. Ins. Co., 12 Mo.App. 111. Whatever the rule of recovery, whether it be the recovery of the premiums paid, or the value of the policy at the time of the wrongful forfeiture, there is no authority for the recovery of the premiums, and the recovery of damages. Parker v. Marcus, 64 Mo. 41. The second count of plaintiff's petition charges a loss which is too remote, too speculative; a loss which may be attributed to such an innumerable number of independent causes, that the law will not permit a recovery therefor. Stevens Lumber Co. v. K. C. Lumber Co., 72 Mo.App. 263; Austin v. Barrows, 41 Conn. 287. There cannot be any doubt but that the policies of insurance in this case took effect and that the appellant was insured for seven years. It is often said that an insured who has been induced to enter into a contract of insurance by fraud can elect to rescind the contract and recover back the premiums paid, or, continue the contract and sue for damages for the fraud. Here insured by his own act rescinded the contract, voluntarily put himself in the position of one without insurance, and seeks to recover both the sum of premiums paid, and the damages resulting from his rescission of the contract. Van Werden v. Equitable Life Assur. Soc., 99 Ia. 621, 68 N.W. 892; Hedden v. Griffin, 136 Mass. 229; 1 Biddle, Insurance, pp. 424, 435; 2 Sedgwick, Damages (8 Ed.), 439; Grinnell, Law of Deceit, p. 195. (2) The third and principal point in appellant's appeal is the alleged error of taking the issue upon the first count from the jury. The sole question is whether plaintiff below had any evidence of fraud or deceit, practiced by the respondent or its agents, upon which a jury might have found that the plaintiff had been wrongfully deceived. The plaintiff was obliged to show actual fraud by misrepresentations, or practices to deceive, in order to recover on the first count. His ignorance of the contents of the policy would avail him nothing since the law requires him to read and know its statements. There is not one word of testimony suggesting intentional or unintentional fraud or deceit. Appellant got the identical policy he bargained for, the identical policy he applied for, the identical policy the respondent by its agents told him he was getting. Appellant does not show that the policy is different from that which the respondent's agent stated he would get, but after seven years of insurance he undertakes to say, that the policy is not what he now says he then thought it was. Perhaps appellant misunderstood agent Mumford at that time. Suffice it, he should have not have so misunderstood him, because the plan of the policy was explicitly stated to him orally, and the policy itself states that a "level rate" policy is one whose rate will have a tendency to remain level on account of the operation of the guaranty fund. The meaning of the term "level rate" was explained to appellant during the negotiations, and it was explicitly defined in the policy. The testimony of appellant's own witness, which is not contradicted, explains the meaning, and his testimony is the best evidence. Fuller v. Ins. Co., 37 F. 163. The oral promise is merged in the written contract. In so far as either count of appellant's petition rests upon an alleged parol or prior contract, agreement or promise, he must fail because the application and policy state the whole contract of insurance. Ins. Co. v. Ruse, 8 Ga. 534; Ins. Co. v. Longley, 62 Md. 197; State ex rel. v. Hoshaw, 98 Mo. 358; Blaine v. Knapp & Co., 140 Mo. 241; Mfg. Co. v. Lumber Co., 81 Mo.App. 252. He accepted an unambiguous instrument and must be bound by its terms. Foster Woolen Co. v. Woolman, 87 Mo.App. 666. The failure of the prophecies of the insurer do not entitle the insured to avoid the contract. Hall v. Ins. Co., 12 F. 359; Ordway v. Ins. Co., 35 Mo.App. 434. Misrepresentations as to future events do not constitute such fraud or deceit that an action for damages will lie therefor. McFarland v. Railroad, 125 Mo. 253; Cunyus v. Guenther, 96 Ala. 564; Cornelius v. Ins. Co. (Ia), 84 N.W. 1037; Ins. Co. v. Mowry, 96 U.S. 544; Ins. Co. v. Lumber Co., 69 P. 936.

ROBINSON, C. J. Brace, Gantt, Valliant and Fox, JJ., concur; Marshall, J., dissents; Burgess, J., absent.


[185 Mo. 472] In Banc


On the 4th day of September, 1900, plaintiff filed in the circuit court of Jackson county, the following petition in two counts:

"Plaintiff states that the defendant is and at all the dates hereinafter mentioned was a corporation, and as such doing a life assurance business in the State of Missouri; that on the fifteenth...

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