Benson v. Metropolitan Life Insurance Co.
| Decision Date | 19 February 1912 |
| Citation | 144 S.W. 122,161 Mo.App. 480 |
| Parties | MATTISON J. BENSON, Respondent, v. METROPOLITAN LIFE INSURANCE CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.
REVERSED.
Judgment reversed.
James H. Austin for appellant.
M. A Fyke and James H. Richardson for respondent.
Plaintiff's action is on a policy of industrial life insurance issued on the life of Elmer E. Burroughs, who was plaintiff's nephew and who lived with him and his wife. The judgment in the trial court was for the plaintiff.
The policy was issued on the 27th and delivered on the 28th of July, 1908. It was conditioned that deceased was in "sound health" when it was issued; and he represented that he had never had heart disease. The undisputed facts were that he was not in sound health and that he had had heart disease for more than a year, having been in the hospital for a month, a year prior to the policy and at the date of the policy was then in the hospital and had been for several days, and that he died in the hospital of heart disease within six weeks after the issuance of the policy.
By the statute of this state (sec. 6937, R. S. 1909) it is declared that no misrepresentation made in procuring a policy shall be deemed material, or render the policy void, unless the matter misrepresented contributed to the death. And that statute has been held by the St. Louis Court of Appeals to apply to policies providing, as does the present one, that the policy shall only become effective if the assured is in sound health when it is issued. [Salts v. Ins. Co., 140 Mo.App. 142, 120 S.W. 714; Lynch v. Ins. Co., 150 Mo.App. 461, 131 S.W. 145.]
But as the uncontradicted evidence shows that deceased died of the disease misrepresented, the statute can be of no avail to the plaintiff. It is therefore apparent that no recovery should be had under such contract and the facts stated, unless influenced by some other consideration. So therefore plaintiff relies upon a waiver. The facts bearing upon the waiver are that defendant's agent knew deceased was in the hospital when he took his application and when he delivered the policy, but was informed that he was there for a slight operation. Deceased's aunt testified that: "I told him (agent) he was at the hospital, but he wouldn't be but a few days, he had a slight operation (for piles) he wanted to perform; and he (the agent) said, have him sign it"--(the application). That...
To continue reading
Request your trial