Bruck v. John Hancock Mut. Life Ins. Co.

• Decision Date: 02 May 1916
• Docket Number: No. 14354.,14354.
• Citation: 185 S.W. 753,194 Mo. App. 529
• Parties: BRUCK v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: Missouri Court of Appeals

185 S.W. 753

194 Mo. App. 529

BRUCK v. JOHN HANCOCK MUT. LIFE INS. CO.

No. 14354.

St. Louis Court of Appeals. Missouri.

May 2, 1916.

On Motion for Rehearing, May 16, 1916.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

"To be officially published."

Action by Katie Bruck against the John Hancock Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Leahy, Saunders & Barth, of St. Louis, for appellant. James J. O'Donohoe, of St. Louis, for respondent.

ALLEN, J.

This is an action upon two policies of life insurance, for $250 each (less unpaid premiums for the remainder of the year, if death should ensue within the first "policy year"), issued by defendant insurance company on August 14, 1912, upon the life of one Fred W. Bruck, in favor of plaintiff, mother of the insured, named as beneficiary therein. The insured died on February 8, 1913. Plaintiff thereupon duly made proofs of death, and demanded of defendant the payment to her of the respective amounts provided by the policies to be paid according to their terms, and upon defendant's refusal to comply with such demand plaintiff instituted this suit.

The petition is in two counts, based upon the respective policies. The answer is a general denial, coupled with a plea to the effect that the insured obtained the issuance of the policies sued upon by false and fraudulent representations, and the concealment of material facts. The trial below, before the court and a jury, resulted in a verdict for plaintiff for $244 and interest, together with an award of $37.50 for attorney's fees as for vexatious refusal to pay, upon each count of the petition. From a judgment accordingly entered the defendant prosecutes this appeal.

Plaintiff, to sustain the issues on her part, introduced the policies sued upon, and showed the payment of all premiums due thereon, the death of the insured on February 8, 1913, the demand thereafter made upon defendant, and the latter's refusal to pay. And plaintiff adduced testimony respecting the value of the service of plaintiff's attorney in the action. Testimony of plaintiff on cross-examination, and that of plaintiff and other witnesses in her behalf, adduced in rebuttal, will be noticed later.

In defense defendant introduced in evidence the application of the insured, upon which the policies were issued, together with the certificate of defendant's medical examiner, who examined deceased to ascertain whether or not he was an insurable risk. In his application the insured stated that he was then in good health, had no bodily defect or infirmity, had "not had within five years any sickness, ailment, disease (bodily or mental)" and that neither he nor any member of his family had ever had consumption. Defendant's medical examiner, in his certificate, stated, among other things, that the appearance of the insured indicated health and vigor; that there was "no indication by auscultation and percussion of any disease of respiratory organs"; that there was nothing in the applicant's appearance, mode of living, etc., which, in the opinion of the medical examiner, would tend to shorten duration of life; and that he "without reservation" recommended the applicant as "safely insurable."

Defendant put in evidence the proofs of death submitted by plaintiff, or in her behalf, when making claim to the insurance provided by the policies to be paid her. In the signed statement of plaintiff, filed as a part of the proofs of death, she stated that the insured died of pleurisy, and that he first complained of ill health about four months prior to his death. Attached thereto was the certificate of the physician, who attended the insured in his last illness, Dr. Kinner, wherein phthisis pulmonalis was given as the cause of death. In this certificate Dr. Kinner stated that he could not definitely tell when the insured's health was first impaired, but that, from "history of the case," it was about four or five months prior to death. With the proofs of death, and as a part thereof, was the certificate of a Dr. Diehl, who therein stated that he had attended the insured on March 6 and March 9, 1912, at which times insured was suffering from bronchitis; that on March 13, 1912, he examined the patient for "T. B." (shown to mean tuberculosis) which he "found positive," and that he "turned the patient over to Dr. E. R. Ward."

Drs. Kinner and Diehl testified as witnesses for defendant; and, apart from the proofs of death, defendant introduced in evidence a written statement signed by the insured in March, 1912, in making application to another insurance company for a sick benefit under a policy of insurance, in which statement, in answer to an inquiry as to the nature of his illness or disease, this answer of insured appears, viz.: "Incipiten (sic) tuberculosis." Attached to this was a statement or certificate of Dr. Ward, wherein, among other things, he stated that the applicant was afflicted with "incipitus tuberculosis." It is unnecessary to notice defendant's evidence in further detail.

Plaintiff testified that the condition of her son's health was good at the time of the issuance of the policy and that he died of pleurisy. She stated that Dr. Diehl prepared the proofs of death, though she signed the statement appearing over her signature. Her testimony and that of other witnesses intimately associated with the insured is to the effect that he, at least prior to the issuance of the policies, was a strong, healthy, and vigorous young man, who took an active part in athletic sports, and tended at least to show that he was not then suffering from tuberculosis.

The only assignment of error pressed upon us relates to the ruling of the trial court on defendant's demurrer to the evidence. It is argued that the demurrer should have been sustained for the reason that the physicians' certificates, filed as a part and parcel of the proofs of death, constitute an admission by plaintiff that the insured died of tuberculosis, and that he had been afflicted with this disease prior to applying for the issuance of the policies; that this admission is wholly uncontradicted and unexplained, and conclusively establishes the fraud charged in obtaining the policies, operating to defeat a recovery as a matter of law; and it is further argued that the admission of the insured made in his application to another insurance company for sick benefit, shown in evidence, is in like manner fatal to plaintiff's case.

Our statute governing the matter in hand, viz., section 6937, Rev. Stat. 1909, provides:

"No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any case shall be a question for the jury."

This statute has been before our courts in numerous cases. The reason for its enactment is well stated in Schuermann v. Insurance Co., 165 Mo. loc. cit. 649, 650, 65 S. W. 723, as follows:

"The act in question was in no sense intended as a general restraint upon the power of courts of equity, by proper proceedings to relieve against actual fraud perpetrated or attempted against insurance companies doing business in this state, by parties seeking insurance; but its manifest aim and object was to check and prevent the wrongs and injustice that too frequently befell the relatives and friends of the insured after their death, resulting from the growing evil, practiced by life insurance companies, of calling for answers to all manner of immaterial questions from the applicant for insurance, bearing the remotest degree, if at all, upon the risk to be assumed, and then by a general provision, incorporated in the policy to be issued, declaring that if any one of the answers be untrue, or not as stated, it should avoid the policy, which condition, without legislative aid, the courts were compelled to enforce without regard to whether the particular answer that was shown to be untrue was material to the risk or not, or whether the untrue answer was the result of an innocent mistake or an intentional wrong."

In a vast array of cases similar in their essential facts to that now before us, our courts have held that whether the matter alleged to have been misrepresented "actually contributed to the contingency or event on which the policy is to become due and payable" is a question for the jury. Among these are Kern v. Legion of Honor, 167 Mo. 471, 67 S. W. 252; Keller v. Insurance Co., 198 Mo. 440, 95 S. W. 903; Conner v. Annuity Association, 171 Mo. App. 364, 157 S. W. 814; Coscarella v. Insurance Co., 175 Mo. App. 130, 157 S. W. 873; Roedel v. Insurance Co., 176 Mo. App. 584, 160 S. W. 44; Buchholz v. Insurance Co., 177 Mo. App. 683, 160 S. W. 573; Clarkston v. Insurance Co., 190 Mo. App. 624, 176 S. W. 437; Schuler v. Insurance Co., 191 Mo. App. 52, 176 S. W. 274.

The statute applies alike to warranties and representations (Keller v. Insurance Co., supra), and draws no distinction between innocent and fraudulent misrepresentations (Kern v. Legion of Honor, supra, overruling Ashford v. Insurance Co., 80 Mo. App. 638, and Van Cleave v. Union C. & S. Co., 82 Mo. App. 668).

But appellant here relies upon admissions of both plaintiff and the insured, which it is said stand unexplained and uncontradicted in the record, with nothing to rebut or repel the force thereof, whereby it is conclusively admitted, not only that the representations of the insured in his application for insurance were false, but that the matter so misrepresented was one which contributed to the contingency or event upon which the policy was to become due and payable, to wit, the death of the insured. And it is contended that under such circumstances there is...