Burgess v. Pan-American Life Ins. Co.

• Decision Date: 09 April 1921
• Docket Number: No. 21821.,21821.
• Citation: 230 S.W. 315
• Parties: BURGESS et al. v. PAN-AMERICAN LIFE INS. CO.
• Court: Missouri Supreme Court

230 S.W. 315

BURGESS et al. v. PAN-AMERICAN LIFE INS. CO.

No. 21821.

Supreme Court of Missouri, Division No. 1.

April 9, 1921.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Henry Burgess, Jr., and another, against the Pan-American Life Insurance Company. Judgment for plaintiffs, defendant appealed to Court of Appeals, and cause certified to Supreme Court (211 S. W. 114). Judgment of trial court affirmed.

Gallivan & Finch, of New Madrid, John Weaver, of Chicago, Ill., and Ward & Reeves, of Caruthersville, for appellant.

N. C. Hawkins end J. S. Gossom, both of Caruthersville, for respondents.

BROWN, C.

This is a suit by the beneficiaries, a son and daughter of the insured, to recover the amount of an insurance policy upon the life of Henry L. Burgess, issued by the Meridian Life Insurance Company of Indiana. The defendant, a life insurance company of the same state, afterward took over the business of the Meridian Company, and thereby assumed its liability, if any, upon this policy.

The answer denies that the Meridian Company, defendant's predecessor, ensured the life of Henry L. Burgess, and alleges that the assured, in his application, made false and fraudulent representations as to his health, in that he was then, and at the time of the delivery of the policy, suffering from tuberculosis and kindred ailments which contributed to his death; and that the insured made false and fraudulent representations as to his age, which "excess age" not only contributed to his death, but rendered the policy absolutely void. It also tendered back and deposited in court the premium paid for the insurance with interest from February 5, 1916.

The policy is dated February 5, 1916, and is for the sum of $2,500. It provides that "all statements made by the insured in the application shall, in the absence of fraud, be deemed representations and not warranties," and that the policy "is to be construed under the laws of the state of Indiana, it being agreed that the place of this contract is at the home office of the company." Also that "if the age of the insured is misstated, the amount payable hereunder shall be the sum which the premium paid would have purchased at the correct age of the insured." It further provides as follows: "All premiums are due and payable in advance at the home office of the company," and that default in the payment of any premiums should forfeit the policy and all payments paid thereon. It was careful to provide that all business should be transacted with the home office at Indianapolis, Ind.

It also recited "the payment of one hundred forty-four and 85/100 dollars to the company at Its home office in Indianapolis, Indiana, on or before the delivery hereof and the further payment of a like amount on or before the fifth day of February in every year thereafter during the continuance of this policy."

The policy contained a provision that no liability would attach until it was duly delivered during the lifetime and good health of the insured. This was the provision around which the legal conflict in the circuit court and Springfield Court of Appeals was gathered.

At the close of plaintiff's evidence the defendant moved the court to instruct the jury to return a verdict in its favor. This was refused and the cause was duly submitted to the jury, which returned a verdict for the full amount of the policy, and $250 for attorney's fees. Upon motion for a new trial the last item was remitted, and motion overruled, and judgment entered for the remainder. From this judgment an appeal was duly taken to the Springfield Court of Appeals, and the cause has been certified to this court upon a division of opinion, Bradley, J., the dissenting judge, being of the opinion that the opinion and decision of the court was contrary to certain decisions of this court and of the Courts of Appeals, which will be found noticed in their order.

At about the same time this dissenting opinion was filed, this court had decided State v. Sturgis, 276 Mo. 559, 208 S. W. 458, in which it had placed its seal of approval upon the doctrine of Gannon v. Gas Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505, in which we held that the right of trial by jury in cases where it had theretofore existed did not have the effect to make the jury simply an advisory instrumentality to the court, but made them the ultimate triers of the fact, and vested in them the right to determine the credibility of the witnesses as well as the inferences to be drawn from the facts. Here the plaintiff made a complete prima facie case upon the evidence, and the burden rested upon the defendant to defeat it by proof of an affirmative defense, and the reading of the entire testimony has impressed us with the wisdom of vesting the power to grant a new trial upon the weight of such evidence in one who presided at the trial and heard and saw it for himself, and might from this standpoint judge of the credit to be given even the most plausible statements. The insured, whose words and acts are made the subject of the defense, is dead, and the inferences arising from his acts were committed to the determination of the jury without the aid of any explanation from him. His contract, with careful precision, provided that it was to be construed by the laws of Indiana and considered as executed in that state. Yet contrary to that provision the principal defense is founded upon the proposition that the final act of execution took place in Missouri 16 days after it purports to have been made and the premium paid. With this explanation we shall adopt the careful statement of facts and conclusions of law prepared by the dissenting judge. We do not set out the general instruction given for plaintiff in this connection, because the defendant's only point against Its propriety is that it places the burden of proof of the affirmative defense relied on upon the defendant, which is fully covered by the dissenting opinion, which is as follows:

"The demurrer is founded on four propositions: (a) That the proofs of death furnished by plaintiffs show as an admission that the insured was suffering from the disease at the date of the delivery of the policy on February 21, 1916, from which he died, and that this admission was not explained or contradicted, and therefore precludes recovery. (b) That aside from the proofs of death the evidence shows conclusively that the insured et the date of the delivery of the policy was suffering from the disease from which he died. (c) That the condition of the health of the insured at the time of the delivery of the policy was shown to be peculiarly within the knowledge of plaintiffs, and their failure to testify as to such fact precludes recovery. (d) That the insured stated his age to be 58 years, and that the evidence shows conclusively that he was 63, and that for this misrepresentation plaintiffs cannot recover.

"(a) Defendant urges that, absent any explanation or contradiction of the alleged admission in the proofs of death plaintiff cannot recover. Plaintiffs in the proofs of death stated that the health of the insured was first affected `about' February 20, 1916, and that the duration of his last illness was about sixty days. Insured died on April 26, 1916. To support this contention, defendant relies on Stephens v. Metropolitan Life Insurance Co., 190 Mo. App. 673, 176 S. W. 253; Castens y. Knights & Ladies of Honor, 190 Mo. App. 57, 175 S. W. 264; Bruck v. John Hancock Insurance Co., 194 Mo. App. 529, 185 S. W. 753. In Stephens v. Metropolitan Life Insurance Company, supra, insured applied for the policy shortly before entering a hospital. On November 16, 1909, thereafter insured entered a hospital. The policy was issued as of date November 29 1909, and delivered that day to the beneficiary without any knowledge of insured's condition of health. Insured died November 30, 1909. Plaintiff testified that he knew insured entered the hospital November 16th, and that he remained there under treatment until the date of his death, but said nothing about this to defendant's agent when the policy was delivered. In the proofs of death plaintiff stated that the insured entered the hospital November 16, 1909, and continued there until his death; also, that the insured was suffering from and died of cirrhosis of the liver. There was nothing to contradict these statements, or that tended to make an issue thereon. Plaintiff merely undertook to explain by saying that he signed the proofs without reading. The court in discussing the question said: `For the purposes of the case, this statement so made and subscribed by plaintiff may be put aside entirely, for it is sufficient to consider the certificate of the attending physician, which was likewise furnished by plaintiff as part of the proof of death. This statement or certificate of the attending physician recites that the physician attended the insured fourteen days before his death, which occurred at the city hospital on November 30th; that the insured entered the city hospital on November 16, 1909, suffering with cirrhosis of the liver and myocarditis, for which he was treated during the time. It recites, too, that the cause of the death of the insured in the city hospital on November 30th was cirrhosis of the liver and myocarditis. This statement of the attending physician in the hospital was furnished by plaintiff as part of the proof of death and is in no manner contradicted or explained in the record, although there is evidence tending to prove that insured was not suffering from such disease when the application for the insurance was made, two weeks before entering the hospital' This case does not support the contention made, nor does the Castens Case, because in these cases there was no contradiction of the admission in the proofs of death, and nothing tending to contradict or explain. In the Bruck Case there was some evidence contradictory of,...