Bowers v. Mo. Mutual Assn.

• Decision Date: 12 August 1933
• Docket Number: No. 32669.,32669.
• Citation: 62 S.W.2d 1058
• Parties: EARL B. BOWERS v. MISSOURI MUTUAL ASSOCIATION, Appellant, a Corporation.
• Court: Missouri Supreme Court

62 S.W.2d 1058

EARL B. BOWERS v. MISSOURI MUTUAL ASSOCIATION, Appellant, a Corporation.

No. 32669.

Supreme Court of Missouri, Division Two.

August 12, 1933.

Appeal from Greene Circuit Court. — Hon. Warren L. White, Judge.

AFFIRMED.

O.J. Page, Lee F. Kinder and Argus Cox for appellant.

(1) Life insurance in Missouri is classified as a stipulated premium or old line, fraternal lodge, and associations doing business on the assessment plan. Chap. 37, R.S. 1929; Aloe v. Fidelity Mut. Life Assn., 164 Mo. 675, 55 S.W. 993; Morrow v. Natl. Life Assn. Des Moines, 184 Mo. App. 308, 168 S.W. 881; Mattero v. Central Life Ins. Co., 215 S.W. 750, 202 Mo. App. 293; Moran v. Franklin Life Ins. Co., 140 S.W. 955. (2) The policy or certificate, by-laws, the application, and articles of association determine the plan of insurance. Moran v. Franklin Life Assn., 160 Mo. App. 407, 140 S.W. 955; Folkens v. Northwestern Natl. Life Ins. Co., 98 Mo. App. 480, 72 S.W. 720; Knott v. Mut. Life Ins. Co., 161 Mo. App. 579, 144 S.W. 178; Buchanan v. Mut. Life Ins. Co., 144 S.W. 185; Rasch v. Bankers Life of Des Moines, 201 S.W. 919; Herzberg v. Brotherhood, 85 S.W. 986, 110 Mo. App. 328; Westerman v. Lodge, 94 S.W. 470, 196 Mo. 167; Williams v. St. Louis Life Ins. Co., 87 S.W. 499, 189 Mo. 70. (3) If the application for insurance, the by-laws, and articles of agreement are set out in this certificate or policy of insurance or are incorporated therein, they form a part of the contract of insurance. Keller v. Home Ins. Co., 95 Mo. App. 627, 69 S.W. 612; Lee v. Mo. State Life Ins. Co., 261 S.W. 83; Haseltine v. Farmers Mut. Fire Ins. Co. of Billings, 253 S.W. 810; Beazell v. Farmers Mut. Ins. Co., 214 Mo. App. 430, 253 S.W. 125. (4) The statute at the time of the execution of the certificate or policy of life insurance becomes a fixed part of the policy contract. State ex rel. Business Men's Assurance Co. v. Allen, 302 Mo. 525, 259 S.W. 77. (5) The common-law rule that warranty in an insurance policy must be exactly fulfilled, irrespective of materiality, has not been changed by statute as to assessment plan insurance. Klein v. U.S. Casualty Co., 295 S.W. 833. (6) Where the answers in an application for insurance are warranties, an untrue answer voids a policy even if not material to the risk. Aloe v. Mut. Reserve Fund Life Assn., 49 S.W. 553, 147 Mo. 561. (7) The doctrine of warranty applies to insurance on the assessment plan and to fraternal insurance but in either case the law exacts literal compliance with the warranty. Cribbs v. United Order of Foresters, 177 S.W. 766, 191 Mo. App. 524. (8) When by the terms of the policy, answers to questions in the application for insurance in an assessment plan company are made warranties, the validity of the policy depends on the literal truth of the answers, it being of no consequence whether they are material to the risk of the policy or not. Commercial Bankers v. Am. Bonding Co., 187 S.W. 99, 194 Mo. App. 224; Williams v. St. Louis Life Ins. Co., 87 S.W. 499, 189 Mo. 70; Linz v. Mass. Mut. Life Ins. Co., 8 Mo. App. 363; Aloe v. Mut. Reserve Fund Life Assn., 49 S.W. 553, 147 Mo. 561. (9) Life insurance companies organized on the assessment plan are not subject to the provisions of the statute that no misrepresentations made in procuring a policy shall be deemed material or render the policy void unless the matter thus represented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether so contributed in either case is a question for the jury, hence they are not required to tender back assessments as a condition precedent to a defense of misrepresentation. Elliot v. Des Moines Life Ins. Co., 63 S.W. 400, 163 Mo. 132; Williams v. Ins. Co., 87 S.W. 499, 189 Mo. 70; Aloe v. Fidelity Mut. Life Assn., 55 S.W. 993, 164 Mo. 675; R.S. 1929, sec. 5754. (10) An insurable interest is not necessarily a definite pecuniary interest such as is recognized and protected by law. It may be contingent, restricted as to time, or indeterminate in amount, but it must be actual, such as will reasonably justify a well-grounded expectation of advantage dependent upon the life insured, so that the purpose of the person affecting the insurance may be to secure that advantage and not merely to put a wager on human life. Chisolm v. Natl. Cap. Life Ins. Co., 52 Mo. 213; 1 Cooley's Briefs on Insurance, p. 375. (11) A person may insure his life for the benefit of one who has no insurable interest therein if he does so in good faith to promote the beneficiary's welfare and not in a collusive manner which would be equivalent to the beneficiary's procuring the insurance. Deal v. Hainley, 116 S.W. 1, 135 Mo. App. 507; King v. Met. Life Ins. Co., 211 S.W. 721; Lee v. Equitable Life Ins. Co., 189 S.W. 1195, 195 Mo. App. 40; Ashford v. Met. Life Ins. Co., 80 Mo. App. 668; Van Cleave v. Union Casualty Co., 82 Mo. App. 638. (12) One cannot recover on an assessment policy of insurance on the life of a person in which he has no insurable interest. R.S. 1929, sec. 5751; Singleton v. St. Louis Mut. Ins. Co., 66 Mo. 63; Whitmore v. Sup. Lodge, Knights and Ladies of Honor, 13 S.W. 495, 100 Mo. 36; Hirsh v. N.Y. Life Ins. Co., 218 Mo. App. 673; Ryan v. Met. Life Ins. Co., 93 S.W. 347, 117 Mo. App. 688; Deal v. Hainley, 116 S.W. 1, 135 Mo. App. 507. (13) That beneficiary without insurable interest did not herself procure insurance, but insured himself took it out. Held, not to render policy of company doing business on assessment plan valid, in view of express statutory inhibition. R.S. 1929, sec. 5751; Abernathy v. Springfield Mut. Assn., 284 S.W. 198. (14) The general rule underlying insurable interest in life or health is best stated as follows: "Though it is not easy to define with precision what will in all cases constitute an insurable interest, it may be stated generally to be such an interest arising from the relations of the party obtaining the insurance either as creditor of or surety for the insured or from some ties of blood or marriage to him as will justify a reasonable expectation of advantage or benefit from the continuance of his life." 1 Cooley's Briefs on Insurance (2 Ed.) p. 371; Warnock v. Davis, 104 U.S. 775. (15) If it appear that the relation whether of consanguinity or of affinity is such as warrants a conclusion that the beneficiary had an interest either pecuniary or arising from dependence or natural affection it is sufficient. Ins. Co. v. Bailey, 13 Wall. 616, 20 L. Ed. 501. (16) Insurable interest dependent upon the relationship of the parties must be such as will justify a reasonable expectation of advantage to the party obtaining the insurance from the continuance of the insured life. Western & So. Life Ins. Co. v. Webster, 189 S.W. 429, 172 Ky. 444. (17) Mere relationship does not give such an interest but an insurable interest in the life must be a pecuniary interest. Guardian Mut. Life Ins. Co. v. Hogan, 80 Ill. 35, 106 Fed. 800; Singleton v. St. Louis Mut. Ins. Co., 66 Mo. 63; Masonic Benefit Assn. v. Bunch, 109 Mo. 560; O'Rourke v. John Hancock Mut. Life Ins. Co., 31 N.Y. Supp. 130; Charter Oak Life Ins. Co. v. Brandt, 45 Mo. 419; Chisolm v. Natl. Cap. Life Ins. Co., 52 Mo. 213. (18) Whether insured was afflicted at the time of the issuance and delivery of policy with disease causing or contributing to her death is a question for the jury, unless foreclosed by unexplained admissions. Hodges v. American Natl. Ins. Co., 606 S.W. (2d) 77; Reece v. Supreme Lodge of K.P., 25 S.W. (2d) 1083. (19) One suing on life insurance policy is bound by admissions in proofs of death unless explained or contradicted. Hodges v. American Natl. Ins. Co., 606 S.W. (2d) 72. (20) A warranty that insured was not afflicted with a certain disease, if false, will defeat the policy in a beneficial association on the assessment plan regardless of its materiality. Hill v. Business Men's Assn., 189 S.W. 587. (21) Where the eligibility of a beneficiary is based on the relation of husband and wife a divorce usually terminates the right of the beneficiary to the benefits under the certificate or policy of insurance, to be determined by the facts and circumstances in each case. If the husband took out the policy on the life of his wife and made himself the beneficiary and paid the assessments on said policy and the application was made after the husband and wife had ceased to live together in that relation, and she had brought an action for divorce against him, and he had filed an answer and cross-bill thereto, and the wife had filed a reply to his cross-bill setting out such facts and circumstances as clearly proved the complete extinguishment of all love and affection, and at the time she was sickly and incompetent to render to him any services, and there existed no pecuniary interest in the life of his wife, and there was no vested right in the contract of insurance, all the insurable interest, if any, became extinguished by the divorce, and because the application forms a part of the policy and shows that the insurable interest upon which the application was made was that of Earl B. Bowers, husband of Marietta Bowers, and that when she divorced the beneficiary the relation of husband ceased. McKee v. Phoenix Ins. Co., 28 Mo. 383; Order of Railroad Conductors v. Koster, 55 Mo. App. 186; Old People's Home Soc. v. Wilson, 52 N.E. 41; Thomas v. Locomotive Engineers Mut. Life Ins. Co., 183 N.W. 628, 191 Iowa, 1152; Green v. Green, 147 Ky. 608, 144 S.W. 1073; Tyled v. Odd Fellows Mut. Relief Assn., 13 N.E. 360, 145 Mass. 134; Brotherhood of Railroad Trainmen v. Taylor, 29 Ohio Cir. Court 171; Orthwein v. Germania Life Ins. Co. of N.Y., 170 S.W. 88, 261 Mo. 650. (22) The rule is well established that a life policy procured by one without the knowledge and consent of the person whose life is insured is void as against public policy. 1 Cooley's Briefs on Insurance (2 Ed.) p....