Bohannon v. Illinois Bankers' Life Ass'n
| Decision Date | 23 September 1929 |
| Parties | L. B. BOHANNON, RESPONDENT, v. ILLINOIS BANKERS LIFE ASSOCIATION, A CORPORATION, APPELLANT. [*] |
| Court | Missouri Court of Appeals |
Appeal from Dunklin County Circuit Court.--Hon. W. S. C. Walker Judge.
AFFIRMED.
Judgment affirmed.
Hugh T Martin and Orville Zimmerman for appellant.
(1) The court erred in refusing and overruling defendant's demurrer to the evidence at the close of plaintiff's case and at the close of the whole case, because: (a) Under the provisions set forth in the application, which is made a part of the policy sued on, and the conceded testimony of plaintiff, viz., that his wife continued sick from the date of his arrival home on December 18th until she died on January 2, 1928, plaintiff could not recover. Carpenter v. St. Joseph Life Ins. Co. (Mo. App.), 246 S.W. 623; Bell v. Mo. State Life Ins. Co., 166 Mo.App. 390; Pierce v. Ins. Co. (Mo. App.), 179 S.W. 749; Edwards v. B. M. A. Assn., 205 Mo.App. 111. (b) The testimony offered by plaintiff on the issue of waiver is not sufficient, under the law, to constitute a waiver of the provision in the application, requiring the assured to be in good health at the time the policy is delivered. Springfield G. & E. Co. v. Southern S. Co. (Mo App.), 250 S.W. 81; Callies v. Modern Woodmen, 98 Mo.App. 527; Davis v. Yorkshire Ins. Co. (Mo. App.), 288 S.W. 80, 83; Schwab v. Brotherhood of American Yeomen, 264 S.W. 690, 692; Langdon v. Kleeman, 278 Mo. 236, 242; Schwab v. Yeoman, 305 Mo. 148, 155; State v. Trimble, 276 S.W. 1020, 1024. (c) There is no competent testimony showing that Sinseney was the agent of the company, and that he had any authority to waive, if he did waive, the requirement that the policy must be delivered while assured was in good health. Agency is a fact, the burden of proving, which rests upon the party affirming its existence. Alexander v. Rollins, 84 Mo. 657; Wade v. Boone (Mo. App.), 168 S.W. 366; Mathes v. Lumber Co., 173 Mo.App. 239; 2 C. J., p. 923 (662); Sec. 1235, R. S. Mo. 1919; Blackman v. McAdams, 111 S.W. (Mo. App.) 559; Smissman v. Wells, 255 S.W. 935; 31 Cyc., pp. 251, 252, 253. (2) The court erred in giving instruction No. 1 for plaintiff, because: (a) The following language in said instruction, "and if you shall find from the evidence that the said policy was delivered to said Martha E. Bohannon while she was in good health, or that the agent of the company knew the condition of her health when he delivered the policy," authorizes a recovery for plaintiff upon two inconsistent theories, viz. (1) that deceased was in good health at the time the policy was delivered, and (2) that the agent of the company knew of the condition of health of insured when he delivered the policy. Crews v. Wilson, 281 S.W. 33; Amos v. Fleeming, 285 S.W. 134; Kuhlman v. Water, L. & T. Co., 271 S.W. 788; Seithel v. St. Louis Dairy Co., 300 S.W. 280; Anderson v. Sutton, 275 S.W. 32, 308 Mo. 406; State ex rel. v. Davis, 284 S.W. 463; Nahorski v. Ry. Co., 274 S.W. 1025. (b) Said instruction invades the province of the jury in assuming that the agent of the company delivered the policy without submitting the finding of such fact to the jury. Welty v. S. H. Kress & Co., 295 S.W. 501; Barnes v. Baker, 299 S.W. 80; Kibler v. Rogland, 263 S.W. 507. (c) Said instruction, purporting to cover the whole case and authorizing a recovery, did not require a finding of the fact of agency of the person who delivered the policy, or that the agent of the company delivered the policy, all necessary findings on the theory of waiver. Herron v. Smith, 285 S.W. 544; Heigold v. United Rep. Co., 271 S.W. 773, 308 Mo. 142. (3) The court erred in refusing defendant's requested instruction No. 3 and in giving modified instruction No. 3 for defendant because that part of the instruction added to defendant's requested instruction No. 3 invades the province of the jury and assumes certain facts to be true, without a finding of the jury thereon, which are material and essential on the issue of waiver.
W. G. Bray for respondent.
(1) Respondent contends that notice to the agent is notice to the company and the company through its agent, Sam E. Sinseney, had full knowledge of the condition of the insured at the time of delivery of the policy, and hence the company waived the "good health" clause in the application. Carpenter v. St. Joseph Life Insurance Co., 246 S.W. 623; Springfield Gas & Electric Co. v. Surety Company, 250 S.W. 78; Henderson v. Koenig, 192 Mo. 690; Murrmann v. Wisslei, 116 Mo.App. 397; Reed v. Bankers Union, 121 Mo.App. 419. (2) Representations are not part of a contract in the sense that warranties are, but inducements to a contract, though not facts which are construed to be true, and they do not have to be construed true as do warranties.
Smith, J., not sitting.
Plaintiff brought suit on a life insurance policy, in which he was named beneficiary, issued by defendant to plaintiff's wife, Martha E. Bohannon, deceased. This policy was for $ 1000 and was issued December 24, 1927. Martha E. Bohannon died January 2, 1928. Defendant refused payment and this suit resulted. The judgment in the trial court was for plaintiff and defendant has appealed.
Defendant contends that its demurrer to the evidence, filed at the close of plaintiff's case, should have been sustained. This contention is based, primarily, upon an alleged breach of a certain condition or stipulation contained in the application for insurance providing, in substance, that the insurance was not to go into effect until after the policy should have been issued and delivered to insured while she was in good health. The application was dated December 13, 1927, and signed by the insured. It seems she was pregnant at that time and suffered a miscarriage on December 17th, thereafter. The policy was delivered to plaintiff by defendant's local insurance agent, Sam E. Senseney, for further delivery to the insured. Plaintiff testified that at the time Senseney brought the policy to him for delivery he told Senseney that his wife had been sick since the date of the application; that she had suffered, "a miscarriage," on the 17th of December, but that she was, "improved;" that he did not tell him his wife was, "in a serious condition;" that he was not asked whether his wife was sick at that time, and did not recall whether or not he told Senseney about her condition on that particular day. There was no other evidence in the case, and this testimony was uncontroverted. Insured was sick continuously from the 17th of December, 1927, until January 2, 1928, when she died. The policy was delivered between those dates, under the circumstances above related. Plaintiff furnished proofs of death of his wife, but the record fails to set out such proofs and the cause of insured's death is not shown. Defendant refused payment of the policy on or about February 4, 1928.
The provision in the application for insurance that the policy should not become effective until delivered while the insured was in good health, was a valid and binding condition of the contract of insurance. [Benson v. Metropolitan Life Ins. Co., 161 Mo.App. 480, 144 S.W. 122; Yount v. Prudential Life Ins. Co., 179 S.W. 749; Carpenter v. St. Joseph Life Ins. Co., 246 S.W. 623; Stephens v. Metropolitan Life Ins. Co., 190 Mo.App. 673, 176 S.W. 253.]
But such provision, being for the benefit of the company, might be waived by such company. [Bell v. Insurance Co., 166 Mo.App. 390, 149 S.W. 33; Rhodus v. K. C. Life Ins. Co., 156 Mo.App. 281, 137 S.W. 907; Herndon v. Triple Alliance, 45 Mo.App. 426.]
In considering the demurrer, the first question is whether or not there was any evidence that defendant waived the "good health," provision of the application signed by insured. We believe the decisions establish the proposition that an insurance agent, clothed with authority to solicit insurance, collect premiums and deliver policies, may receive such notice of the breach of a condition, at the time he may deliver the policy, as to bind the insurer by a waiver of such condition. [Bennett v. Standard Acc. Ins. Co., 237 S.W. 144, 209 Mo.App. 81; Benson v. Metropolitan Life Ins. Co., 161 Mo.App. 480, 144 S.W. 122; Tiller v. Farmers' Mutual Fire Ins. Co., 296 S.W. 464; Connecticut Indemnity Assn. v. Gregon, 21 Ky. L. Rep. 717, 52 S.W. 959; Metropolitan Life Ins. Co. v. Willis, 37 Ind.App. 48, 76 N.E. 560; Ames v. Manhattan Life Ins. Co., 57 N.Y.S. 759.]
According to plaintiff's testimony defendant's agent knew the insured had been pregnant at the time she signed the application. He also knew she had suffered a miscarriage between the date of the application for insurance and the date of the delivery of the policy. He further knew she had not fully recovered. We think such knowledge was sufficient to, at least, make a question for the jury on the proposition of a waiver.
The demurrer was properly overruled for the further reason that defendant failed to prove that the admitted pregnancy of insured, and miscarriage suffered by her, contributed to her death. Under our statute, stipulations in insurance policies that the insured shall be...
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