Burns v. Metropolitan Life Insurance Company

• Decision Date: 10 January 1910
• Citation: 124 S.W. 539,141 Mo.App. 212
• Parties: KATE BURNS et al., Respondents, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant
• Court: Kansas Court of Appeals

124 S.W. 539

141 Mo.App. 212

KATE BURNS et al., Respondents, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 10, 1910

Appeal from Linn Circuit Court.--Hon. Jno. P. Butler, Judge.

Judgment affirmed.

Nathan Frank, W. M. Oliver and Tunnell & Hart for appellant.

(1) The proofs of death offered in evidence by respondents were admissible for no purpose except to show that proofs had been duly furnished; their contents were not admissible as evidence for respondents. 2 Bacon, Benefit Societies (3d Ed.), 471; Breckenridge v. Insurance Co., 87 Mo. 72; Baile v. Insurance Co., 73 Mo. 371. (2) Sections 7890 and 7891 of the Revised Statutes 1899, have no application to the defense sought to be made by appellant. The manifest aim and effect of these sections was to prevent forfeitures of all rights under policies by reason of the immaterial misrepresentations which in no way prejudiced the insurer. Schuerman v. Insurance Co., 165 Mo. 650; Keller v. Insurance Co., 198 Mo. 455. (3) The provision of the policy in suit to the effect that the amount payable thereunder should be such sum as the actual premium paid would have purchased at the true age of the insured, is valid and binding and does not depend upon any misrepresentation made by the insured. Sections 7890 and 7891, Revised Statutes 1899, have no application here, and the trial court should have submitted the issues as to the age of John O'Neill to the jury under the instructions asked by appellant.

Burns & Burns for respondents.

(1) The first point raised by the appellant seems to be that the death proofs were not properly admitted and cite two cases in support of that contention, both of which are cases relative to fire insurance and one of which is an equity suit, and neither of which apply to this case. It seems to us that under the pleadings there can be no question but the death proofs offered in evidence were properly admitted for all the purposes and to prove all the matters attempted to be proved by them. It is next urged by appellant that sections 7890 and 7891 of the Revised Statutes of Missouri 1899, have no application to the defense attempted in this case and cite Schuerman v. Insurance Co., 165 Mo. 650, and Keller v. Insurance Co., 198 Mo. 455. (2) It seems to us, however, that so far as these cases are applicable to the case at bar, they sustain the contention of respondents. (3) The trial court very properly refused appellant's demurrer and other instructions and very properly sustained respondents' motion to strike out all of the evidence of appellant, and very properly gave the peremptory instruction requested by respondents, and under the law could have done no more. Lavin v. Insurance Co., 101 Mo.App. 434; Kern v. Legion of Honor, 167 Mo. 471.

OPINION

ELLISON, J.

Defendant issued to one John O'Neil a policy of life insurance, agreeing, upon certain conditions to pay upon his death, to his two daughters, the sum of five hundred dollars. He paid the premiums until his death. Defendant tendered $ 291.33 in full discharge of the amount due on the policy. The tender was refused and this action was brought. The tender was kept good. The trial court rendered judgment for the plaintiffs for the full face of the policy, and defendant appealed.

The written application of O'Neil for the policy stated that he was sixty-five years of age, and the premiums required by defendant and paid, were based on that age. But the policy contained the following provision: "Absolute proof of age may be required with proofs of claim hereunder and the amount payable shall be the insurance that the actual premium paid would have purchased at the true age of the insured." The defendant claimed O'Neil's true age to have been 79, when he took out the policy, and it is not disputed that the amount tendered was sufficient of defendant can be allowed the defense.

Plaintiffs insist that the defense is not good for the reason that it is based on an immaterial misrepresentation not allowed to the defendant. They call to their aid the following statute (sec 7890, R. S. 1899). "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."

That statute has been many times before the appellate courts of the State and has been upheld by them. The object and intention of the lawmakers in enacting it is thus stated by the Supreme Court in Scheurman v. Insurance Co., 165 Mo. 641: ". . . Its manifest aim and object was to prevent the wrongs and injustice that too frequently...