Keller v. Home Life Insurance Company
| Decision Date | 03 July 1906 |
| Citation | 95 S.W. 903,198 Mo. 440 |
| Parties | MARY M. KELLER v. HOME LIFE INSURANCE COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court. -- Hon. Henry C. Riley Judge.
Affirmed.
W. H Miller and T. D. Hines for appellant.
(1) The refusal of the court to give instruction 3 asked by appellant was error. This instruction directed the jury to disregard plaintiff's claim for a ten per cent penalty as damages and was, in effect, the opposite of instruction 2 given on behalf of respondent. (2) Appellant brought itself fully within the requirements of sections 7890 and 7891, Revised Statutes 1899, by pleading and proving many gross misrepresentations of assured in his application for the policy concerning the condition of his health, his habits, his past personal history, the physicians he had consulted; these representations were warranties; they were fraudulent in character, in that they induced the contract and were offered for that purpose; the matters misrepresented actually contributed to Keller's death; defendant tendered the first annual premium, the only one paid, back to plaintiff before the institution of this suit and by depositing this, with the interest to date of trial in court for plaintiff before the trial; there being no question about these answers of assured being absolutely false, the judgment is without evidence to support it, and this cause should be reversed and not remanded. (3) While section 7890, Revised Statutes 1899, provides that no misrepresentation made in obtaining a policy of insurance in an old line company such as this shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the event on which the policy is to become due, and, whether it so contributed, shall be a question for the jury; yet, in this case, there was absolutely not one scintilla of evidence upon which the verdict of the jury could or can rest. The misrepresentations were admittedly about Keller's having had consumption. The testimony of Dr. Blomeyer and of Dr. Kiehne that Keller had had consumption in the spring previous to his being insured by appellant was not denied or questioned by any one. That they told Keller the nature of his disease is not pretended to be denied by any witness. That he successfully concealed these damning facts by misrepresentations, which were sweeping and wilful, stands unchallenged by testimony of any kind or character in the case. That Keller died of consumption within about six months after the policy in suit was issued, is admitted by everybody. Hence, appellant now charges that the trial court should have set aside the verdict, and it not having done so upon proper motion, with exception properly saved, this court should reverse and not remand this case. (4) Instruction 2 for respondent submitted to the jury the question of a ten per cent penalty for a "vexatious" defense and defined the term "vexatious." This is clearly error, first, because the evidence will not justify such a conclusion; and secondly, because the statute itself is violative of article 5 and article 14 of the amendments to the Constitution of the United States. Paddock v. Railroad, 155 Mo. 524; State v. Loomis, 115 Mo. 307; Thompson v. Ins. Co., 169 Mo. 30; Brown v. Railroad, 169 Mo. 30; Brown v. Railroad, 104 Mo.App. 697; Williamson v. Ins. Co., 105 F. 31. (5) A warranty must be strictly true, as it defines the limits of the obligation assumed by the insurer, and if it is false in any part, whether that part affects the risk or not, there can be no recovery on the contract. McDermott v. M. W. A., 97 Mo.App. 647; Aloe v. Ins. Co., 147 Mo. 561; Reid v. Ins. Co., 58 Mo. 421; Mers v. Ins. Co., 68 Mo. 127; Boyle v. Ins. Co., 95 Wis. 312; Jefferies v. Ins. Co., 22 Wall. 47; Ins. Co. v. France, 91 U.S. 510. An untruthful answer by an applicant for insurance, where the answers are warranted to be true, has been held to be a breach of warranty and to avoid the policy of insurance. Ins. Co. v. Reutlinger, 58 Ark. 528; Cobb v. Ins. Co., 153 Mass. 176; Caruthers v. Life Ins. Co., 108 Feb. 487; Life Ins. Co. v. McTague, 49 N. J. L. 587; Ins. Co. v. O'Hara, 120 Pa. St. 256; Phillips v. Life Ins. Co., 9 N.Y.S. 836; Ins. Co. v. Van Wald, 49 P. 782; Ins. Co. v. Arhelger, 36 P. 895; Brady v. Life Ins. Co., 60 Fed. (C. C. A.) 727; Sladden v. Life Ins. Co., 86 F. 102; White v. Ins. Co., 103 N.Y. 341; Life Ins. Co. v. Llewellyn, 58 F. 940; Scharzbach v. Ins. Co., 25 W.Va. 622; Geach v. Ins. Co., 20 N.Y. 293; Aloe v. Ins. Co., 147 Mo. 561; McDermott v. Ins. Co., 97 Mo.App. 636.
Wilson Cramer for respondent.
(1) Section 7890, as contrued by the more recent decisions of this court, abolishes the distinction formerly made between warranties and representations and places them on an equal footing. Jacob v. Life Ass'n, 146 Mo. 523; Aloe v. Fidelity Mut. Life Ass'n, 164 Mo. 675; Scheurmann v. Life Ins. Co., 165 Mo. 641; Kern v. Legion of Honor, 167 Mo. 471; Jenkins v. Life Ins. Co., 171 Mo. 383; Williams v. Ins. Co., 189 Mo. 70. (2) In the court below defendant recognized the applicability of section 7890 by asking an instruction based upon it. (3) Since the decision in the case of Railroad v. Ellis the Supreme Court of the United States has directly passed upon and upheld as constitutional statutory provisions relating to insurance companies, which authorize the collection of damages for refusal to pay promptly, and attorney's fees in actions against such companies. Fidelity Mut. Life Ass'n v. Mettler, 185 U.S. 308; Ins. Co. v. Lewis, 187 U.S. 335; Ins. Co. v. Dobney, 189 U.S. 301. (4) The question of vexatious delay is a question of fact to be determined by the jury from all of the facts and circumstances in the case, and two juries have decided that issue against the defendant. Brown, Admr., v. Ry. Passenger Ins. Co., 45 Mo. 221. (5) The defense set up in the answer is strictly a legal defense and the burden of proof is upon the defendant. Scheurmann v. Ins. Co., 165 Mo. 641.
This cause is brought to this court by appeal on the part of the defendant from a judgment of the Cape Girardeau Circuit Court in favor of the plaintiff for the sum of $ 2,475. This was a suit by plaintiff, who is the widow of August W. Keller, deceased, against the defendant insurance company of New York, an old line company, upon a policy dated October 30, 1899, for $ 2,000.
The sufficiency of the petition stating the cause of action is not challenged, but it is conceded by appellant that the petition is in the usual form in cases of this character.
The main contentions in this cause arise upon the defenses set up in the answer and the evidence introduced upon such defenses and the instructions given by the court applicable to such evidence; therefore, to fully appreciate this controversy it is important to state at least the substance of the defenses interposed by the answer.
The answer contained three counts. The first count was an admission of the character and business of defendant as charged in the petition, coupled with a general denial.
The second count set out at length the facts leading up to the issuance of the policy; set out fully the application of assured to defendant upon which the policy was issued; also set out fully the declarations of Keller to the company's medical examiner, and charged that by the terms of the policy the said written application of assured, together with his answers and his declarations to the medical examiner of defendant, were a part of the policy and constituted the basis upon which said policy was issued. This count of the answer charged that assured's answers to questions propounded to him in these two papers were replete with false statements and misrepresentations concerning the condition of his health, his history, his habits and his treatment by other physicians, etc., and charged that assured did not make these misrepresentations innocently, but knowingly, and with the specific intent to deceive the company; that they did deceive the company into issuing the policy in suit, and that but for said false representations and answers said policy would never have been issued. This count of the answer also charged that in the said application, so made, as well as in his said declarations to the medical examiner, Keller, over his own signature, expressly warranted in his own behalf and on behalf of all persons who might claim any interest in said policy, that all of his said answers to said questions therein were true, full and complete. The second count further charged that these said misrepresentations, false and fraudulent in character, were warranties and were about matters which contributed directly to the death of Keller. That the first annual premium had been tendered in return to plaintiff before suit was brought, and it was accompanied with a deposit in court of the premium and the accumulated interest on it. This count specifically charged that Keller was a consumptive long before he applied for this insurance. That he had been treated for it, advised that he had it, and that he died with that disease.
The third count in the answer charged that the statute which provides for a ten per cent penalty for a vexatious defense to a suit upon an insurance policy was void and of no effect as contravening the 14th amendment of the Constitution of the United States, and section 20 of article 2 of the Constitution of Missouri.
The replication was a general denial.
The testimony upon the trial of this cause on the part of the plaintiff tended to substantially prove the following state of facts: That August W. Keller was a farmer about 38 years of age, owning...
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