Aloe v. Mutual Reserve Life Association
| Decision Date | 07 February 1899 |
| Parties | Aloe v. Mutual Reserve Life Association, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant Judge.
Reversed.
Wm. C. & Jas. C. Jones and George Burnham, Jr., for appellant.
(1) The statements and answers in the application are warranties, and the court erred in holding that such statements were only representations. Hanford v. Mass. Ben., 122 Mo. 58; Whitmore v. Sup. Lodge, 100 Mo. 47; Jacobs v Omaha Life, 142 Mo. 49; Haynie v. Knights Templar, 139 Mo. 416; Sparks v. Knights Templar, 61 Mo.App. 109; Theobald v. Supreme Lodge, 59 Mo.App. 87; Richards v. Ins. Co., 68 Mo.App. 585. (2) The answers and statements in an application for an insurance policy are warranties where: (a) Direct questions are asked and answered. May on Ins., sec. 156; Cooke on Ins., sec. 18, p. 34. (b) When by the terms of the contract the answers are expressly agreed to be warranties. Ins. Co. v. McTague, 49 N. J. L. 588; Wilkins v Mutual Reserve, 54 Hun. 294; Mers v. Ins. Co., 68 Mo. 131; Reid v. Piedmont Ins. Co., 58 Mo. 421. (c) When the application is referred to in the policy, and made a part of the contract. May on Ins., secs. 156, 158, 159; Beach on Ins., sec. 456; Foot v. Aetna, 61 N.Y. 575; Koontz v. Ins. Co., 42 Mo. 131; Clemans v. Sup. Assembly, 131 N.Y. 485. Therefore the court erred in refusing to instruct that the answers were warranties and instructing that they were merely representations. A warranty must be absolutely and literally true, or the policy is avoided; and the question of "materiality to the risk" should not be submitted to the jury. Aetna Life Ins. Co. v. France, 91 U.S. 510; Jeffries v. L. I. Co., 22 Wall. 47; Brockway v. Mut. Ben., 9 F. 249; Hanford v. Mass. Ben., 122 Mo. 50, 60; Whitmore v. Sup. Lodge, 100 Mo. 36; Reid v. Piedmont Ins. Co., 58 Mo. 423; Loehner v. Ins. Co., 17 Mo. 255; Linz v. Ins. Co., 8 Mo.App. 372; Koontz v. Ins. Co., 42 Mo. 131; Mers v. Ins. Co., 68 Mo. 131; Ramer v. Ins. Co., 70 Mo.App. 47; Cobb v. Ass'n, 153 Mass. 176; Foot v. Aetna, 61 N.Y. 575; Wilkins v. Mut. Res., 54 Hun. 294; Dwight v. Germania, 103 N.Y. 347; Clemans v. Sup. Assembly, 131 N.Y. 485; Phillips v. N. Y. L. I. Co., 9 N.Y.S. 837; Kelly v. L. I. Co., 26 Ins. L. J. 892; Cooperative Ass'n v. Leflour, 53 Miss. 215; Prov. Sav. L. Ass'n v. Reutlinger, 58 Ark. 528; McKenzie v. Scottish Union, 112 Cal. 555; Bloomer v. Ins. Co., 45 Wis. 622; May on Ins., secs. 156, 158, 159; Beach on Ins., sec. 456; Cooke on Ins., sec. 15. (3) Conceding (solely, however, for the purpose of this point) that the answers of Aloe were not warranties, still they were material representations, and should have been so declared by the court as a matter of law. Aetna v. France, 91 U.S. 516; Loehner v. Ins. Co., 17 Mo. 257; Mers v. Ins. Co., 68 Mo. 131; Jeffries v. Ins. Co., 22 Wall. 54; Campbell v. Ins. Co., 98 Mass. 402; Hartman v. Keystone, 21 Pa. St. 467; Aid Society v. White, 100 Pa. St. 16; Foot v. Aetna, 61 N.Y. 576; Elliott v. Mutual Res., 76 Hun. 378; Numrich v. Sup. Lodge, 3 N.Y.S. 582; Johnson v. Maine Ins. Co., 83 Me. 383; Miller v. Mut. Ben., 31 Ia. 232; Fame v. Thomas, 111 Ill.App. 555; Cuthbertson v. Ins. Co., 96 N.C. 486; Wilson v. Conway, 4 R. I. 156; Anderson v. Fitzgerald, 4 H. L. Cases, 484; Davenport v. N. Eng. Co., 6 Cush. 340; May on Ins., sec. 185; Cooke on Ins., sec. 17; Bacon, Ben. Societies, sec. 212.
Noble & Shields for respondent.
(1) The answers and statements in the application at bar are not warranties. (a) Under this head we distinguish the cases in Missouri cited by appellant, showing that they generally are constructions of conditions in the policy itself. (b) That the policy, application and constitution, in the case at bar, taken together, leave the question open to construction as to whether the answers of Mr. Aloe were warranties and they must be construed strictly against the appellant. Moulor v. Ins. Co., 111 U.S. 335; Alabama Gold Ins. Co. v. Johnson, 80 Ala. 467; Tesson v. Ins. Co., 40 Mo. 33; S. C., 50 Mo. 112; Renshaw v. Mo. State Mutual, 103 Mo. 604; Hoffman v. Manufacturers' Co., 56 Mo.App. 301; Hoffman v. Ins. Co., 32 N.Y. 405; Reynolds v. The Commerce Fire Co., 47 N.Y. 597; Ethington v. Dwelling House, 55 Mo.App. 129; 1 Joyce on Ins., secs. 186, 187; American Life Ins. Co. v. Day, 39 N. J. L. 89; Ins. Co. v. Crandall, 120 U.S. 527; Price v. Ins. Co., 17 Minn. 497; Campbell v. N. E. Mut. Life, 98 Mass. 381; Brink v. Ins. Co., 49 Vt. 457; Ketterboch v. Ins. Co., 49 Neb. 841; 2 Joyce on Ins., sec. 1890; Miller v. Ins. Co., 31 Ia. 22; Rockingham v. Ins. Co., 52 N.H. 581; Causal v. Ins. Co., 31 Minn. 17; Holbrook v. Ins. Co., 25 Minn. 229; Schwartzbach v. Ohio Valley Pro. Union, 25 W.Va. 622; Bank v. Ins. Co., 95 U.S. 673; Life Ins. Co. v. Wood, 54 Kan. 663; Indiana Farm Live Stock v. Randall, 34 N.E. 588; Rogers v. Ins. Co., 121 Ind. 570; Ins. Co. v. Wiler, 100 Ind. 92. (2) The answers were not warranties, neither were they representations, which, if found untrue, in any respect would avoid the policy as a matter of law, and the jury be directed to find for the appellant. 2 Joyce on Ins., secs. 1883, 1884, 1892, 1898, 1910; Closon v. Smith, 3 Wash. 156; Flinn v. Headlam, 9 Barn. & C. 693; Fitch v. Ins. Co., 59 N.Y. 557; Hampden v. Ins. Co., 4 R. I. 159; Fisher v. Ins. Co., 33 F. 449; Dilleber v. Ins. Co., 69 N.Y. 256. (3) The aswers in the application were not material to the risk and were substantially true and did not mislead the defendant. Under this head we discuss the specific questions and answers pleaded as defenses by appellant, and under authorities cited show they were not material and did not mislead the defendant. 1 Bacon on Ben. Societies, sec. 230a; Brown v. Ins. Co., 65 Mich. 306; Morrison v. Ins. Co., 59 Wis. 170; French v. Mut., etc., Ass'n, 111 N.C. 391; Hann v. Ins. Co., 56 N.W. 834; Provident Life Ass'n v. Reutlinger, 25 S.W. 835; Cushman v. U. S. Life Ins. Co., 70 N.Y. 72; Goucher v. Northwest Traveling Men's, etc., 20 F. 600; N.W. Mut. Life v. Heinman, 93 Ind. 24; Holloman v. Life Ins., 1 Woods (C. C.), 674; Singleton v. St. Louis Ins., 66 Mo. 63; Boos v. Ins. Co., 64 N.Y. 236; Ins. Co. v. Trefz, 104 U.S. 197; Ins. Co. v. Wise, 34 Ind. 599; Fitch v. Ins. Co., 59 N.Y. 557; Dilleber v. Ins. Co., 69 N.Y. 256; Mut. Reserve Fund v. Sullivan, 29 S.W. 190.
The defendant is a corporation incorporated under the laws of the State of New York, and under its charter its business is limited to insurance on the assessment plan, and having complied with all the requirements of our laws, is authorized to transact business in this State on that plan.
This suit is based upon a policy of insurance issued by the defendant on the thirteenth day of October, 1890, on the life of Albert S. Aloe, in the sum of $ 5,000, payable to the plaintiff who is the wife of said Albert.
The application for the policy was in writing, and signed by the insured on the third day of October, 1890, at the city of St. Louis, Missouri, and by him forwarded to defendant at its home office in the city of New York.
On January 30, 1893, Albert S. Aloe died, and after proofs of death as required by the terms of the contract had been made, and defendant's refusal to pay the amount of the policy, this suit was instituted. The petition is in the usual form in such cases.
The answer admitted the plaintiff's case and then pleaded affirmatively breaches of warranty in the application for the insurance and fraudulent statements inducing the issue of the certificate. The breaches of warranty and false answers alleged by defendant related to the then physical condition of insured; to prior rejections of insured for insurance; unfavorable opinions of physicians in connection therewith; consultation and treatment by physicians and change of climate by insured for his health, and other insurance not disclosed by Aloe in his application.
Issue was joined by reply, denying the new matter in defendant's answer.
The trial was before the court and jury, and resulted in a verdict and judgment in favor of plaintiff for the full amount of the policy, from which, after unsuccessful motion for a new trial defendant appeals.
The policy provides that in consideration of the answers, statements and agreements contained in the application for the policy of insurance which are made part of the contract, and of the payment of $ 40 as admission fee, etc., Albert S. Aloe is admitted to membership in the association.
In the application the assured was asked a number of questions, which he answered in writing; those being material to the issues involved in this litigation and the answers thereto, are as follows:
Answer. "Germania, N. Y., endowment; issued about 1880, $ 2,500; Washington Life, endowment, about 1878, $ 4,500; Conn. Mutual 10-year plan, about 1875, $ 2,500; paid up, Bay State, $ 5,000."
Answer. "Yes, N. Y. Life and Conn. Mut. about six years ago, on account of traces of albumen."
"No. 11. a. Has any proposal or application to insure the life of the applicant, or for membership, ever been made to any company, association or agent, upon which a policy or certificate of membership has not been received by you in person for the full amount and kind, and at the rate applied for?"
Answer. "Yes, as above."
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