Brown v. Metropolitan Life Ins. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: FULBRIGHT, J.
• Citation: Brown v. Metropolitan Life Ins. Co., 151 S.W.2d 499, 236 Mo.App. 315 (Mo. App. 1941)
• Decision Date: 20 May 1941
• Parties: LOUISE M. BROWN, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT

151 S.W.2d 499

236 Mo.App. 315

LOUISE M. BROWN, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Springfield

May 20, 1941

Appeal from the Circuit Court of Iron County.--Hon. Edward T Eversole, Judge.

REVERSED.

Judgment reversed.

Fordyce White, Mayne, Williams & Hartman, Oliver & Oliver, and Harry Cole Bates for appellant.

(1) The courts do not make contracts for the parties. It is their function to interpret and enforce contracts as made including insurance contracts, unless the same are in contravention of the public good. This clause is not in contravention of the public good. Bergholm v. Peoria L. Ins. Co., 284 U.S. 489; Adams v. Metropolitan, 74 S.W.2d 899; Prince v. Metropolitan, 129 S.W.2d 5. (2) The clause "When Policy Is Voidable," as contained in the policy sued on herein, is a simple, unambiguous, enforceable part of the contract. Therefore the refusal of the trial court to give and sustain defendant's demurrer to plaintiff's evidence at the close of the whole case was reversible error. Grant v. Metropolitan, 194 S.C. 25, 9 S.E.2d 41; Davis v. Metropolitan, 31 N.E.2d 98; McDermott v. Metropolitan, 8 N.Y.S. 896. (3) The giving of plaintiff's instruction No. 1, which ignored the defense raised by defendant, was error. Prince v. Metropolitan, 129 S.W.2d 5; Sells v. Fireside Life Ass'n, 66 S.W.2d 955; Walker v. Bianchi, 276 S.W. 1044.

No appearance for respondent.

FULBRIGHT, J. Blair, P. J., and Smith, J., concur.

OPINION

FULBRIGHT, J.

--This is an appeal from a judgment on an insurance policy, rendered in the Circuit Court of Iron County, in favor of plaintiff for the sum of $ 278.20.

Plaintiff's petition is in conventional form. The answer is in substance, (1) a general denial; (2) as a further answer defendant sets out the following provision in the policy:

"WHEN POLICY IS VOIDABLE. If (1) within two years prior to the date of issue of this Policy the Insured has been a patient at, or an inmate of, any institution for the treatment of physical or mental disease, or has undergone any surgical operation, or has been attended by a physician, unless it shall be shown by the Insured or any claimant that no such institutional, surgical, or medical treatment or attention was for a serious disease, injury, or physical or mental condition; or if (2) prior to such date of issue the Insured has been rejected for life insurance by this or any other insurer; then, in any such case, this Policy shall, subject to the clause entitled Incontestability, be voidable by the Company, unless reference to such institutional, surgical or medical treatment or attention, or such prior rejection, is endorsed on this Policy by the Company. If this Policy does not take effect, or is voided by the Company, the Company will return the premiums paid."

It then alleges that within two years of the issue of the policy insured was a patient in an institution for treatment of physical disease or was attended by a physician; that said facts existed within one year next before the issuance of the policy; that no reference to such institution, treatment or attention was endorsed on the policy; that because of said facts the policy was voidable within one year after its issue and within that period defendant declared same to be void, and tendered to plaintiff the sum of $ 11.75, received as premium payments on said policy.

As a further answer defendant pleaded the "When Policy is Voidable" clause; alleged that in the application certain questions were set out with the answers made by insured, which answers were alleged to be false; that insured had certain diseases at the time of making the application; was suffering from a spinal disease--tuberculosis of the spine; that she had been under treatment in the Cleveland Charity Dispensary within the five year period before making the application; that at the time of making the application she had a physical defect and was suffering from a growth or tumor; that within three years next before signing said application she had been under the care of physicians and treated for disease; that defendant would not have issued the policy had the facts been disclosed, or had it known said representations were false; that said representations were fraudulent, made for the purpose of defrauding defendant and did defraud and deceive.

Plaintiff's reply is a general denial coupled with a specific denial that insured made any false or untrue representations at the time of the issuance of the policy and a further denial that within two years prior to the date of the issuance, insured was or had been a patient at or an inmate of an institution for treatment of physical or mental disease or had undergone any surgical operation or was attended by any physician, for any serious disease; and specifically denies that she was asked the questions or gave the answers as set out in defendant's answer.

The facts are as follows: On the 23rd day of August, 1937, defendant issued the policy sued on upon the life of Virginia L. Montgomery in the sum of $ 260. Insured died on July 19, 1938, and her mother, Louise M. Brown, the beneficiary instituted the suit after furnishing defendant proof of the death of the insured. Within two years prior to the date the policy was issued insured was a patient at and an inmate of an institution for the treatment of physical or mental disease, and was, within the said two year period attended by two physicians. No reference to such institution, surgical or mental treatment or the fact she was attended by such physicians is or was endorsed on the policy sued on herein, which was introduced in evidence. Defendant declared the policy void prior to the filing of the suit and tendered to the plaintiff the total amount of the premium that had been paid together with accrued interest thereon, amounting in the aggregate of $ 13.75. Tender was also made in the petition filed and the sum of $ 13.75 was paid into the registery of the Circuit Court at the time of the trial. The tender was refused by plaintiff.

Plaintiff, to sustain her cause of action offered the policy sued on and the death certificate which shows that the principal cause of the death of the insured, on July 19, 1938, was tubercular meningitis.

The evidence on the part of the defendant tended to show that the insured had been a patient in St. Vincent Charity Hospital in Cleveland, Ohio, April 6, 1936; was X-rayed on April 7, thereafter, and found to be suffering from caries of her lumbar spine. The records of that institution, which were introduced, also show that on April 23, 1935, the patient had a deformity known as kyphosis of the lumbar spine, along with compensatory scoliosis of the dorsal vertebrae. Similar findings were noted on June 5, 1937, when X-rays were taken, together with a small abscess over the side of an old scar of previous abscess. On June 12, 1937, the abscess ruptured spontaneously and wound was dressed, and again dressed on June 17, 1937.

The deposition of Dr. Barber, surgeon in charge of orthopedics at St. Vincent's Charity Hospital, and an instructor in orthopedics at Western Reserve University and Lakeside Hospital in Cleveland, testified that the X-ray and records had been made at his direction; that when he examined the insured April 7, 1936, he found her condition grave and the disease with which she was afflicted serious; that she was suffering from caries of her lumbar spine, complicated by systemic syphilis; that caries of the spine is a disease tending materially to shorten life; that the patient was subsequently treated at the hospital and that he interpreted the X-rays taken June 7, 1937, and found a very extensive destructive process involving the entire lumbar spine, producing an extreme deformity in the form of a very marked kyphosis, as well as a scoliosis of the lumbar region, with an associated scoliosis in the thoracic region of the spine; that at least two and possibly three of the bodies of the lumbar spine had been almost entirely destroyed by the disease process.

Dr Peck, a graduate of Western Reserve Medical School and a member of the orthopedic department at Charity Hospital in Cleveland, testified that on June 5, 1937, he was assistant orthopedic surgeon at said hospital; that he examined and treated insured, a colored girl, at that time; that she was approximately 17 years old; that he first saw her April 1, 1935; again on June 5, 1937, June 12 and 17, 1937, all at Charity Hospital; that X-rays were made of her on June 6, 1937; that on that date he found she had a deformity known as kyphosis of the lumbar spine, along with compensatory scoliosis of the dorsal vertebrae; that she had a cold abscess in the lumbar region; that she also had tuberculosis of...