Chambers v. Metropolitan Life Ins. Co.

• Decision Date: 05 January 1942
• Parties: REYNOLD CHAMBERS AND JAMES D. POUNCEY, RESPONDENTS, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

157 S.W.2d 593

236 Mo.App. 823

REYNOLD CHAMBERS AND JAMES D. POUNCEY, RESPONDENTS, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

January 5, 1942

Appeal from Circuit Court of Jackson County.--Hon. Thos. J. Seehorn Judge.

AFFIRMED.

Judgment affirmed.

James D. Pouncey and Harry A. Hall for respondents.

(1) There was no competent evidence that Mason had any ailments or consulted any physicians prior to the reinstatement. (a) Errors in the admission of evidence may be shown by a respondent to uphold the judgment. Crabtree v. Bankers Life Ins. Co., 128 S.W.2d 1089; St. Charles Savings Bank v. Denker, 275 Mo. 607, 205 S.W. 208; O'Connell v. Dockery, 102 S.W.2d 748. (b) The court erred in admitting the testimony of Dr. Zimmer concerning Mason's treatments and physical condition. R S. Mo. 1939, sec. 1895; Marson v. Met. Ins. Co., 35 S.W.2d 118; Hicks v. Met. Ins. Co., 190 S.W. 661; Frazier v. Met. Ins. Co., 141 S.W. 936. (c) The court erred in admitting Dr. Zimmer's statement defendant's Exhibit C, in evidence, because it was not authorized or submitted by the beneficiary. Frazier v. Met. Ins. Co., 141 S.W. 936; Houston v. Met. Ins. Co., 97 S.W.2d 856; Allen v. Knights & Ladies of Security, 108 Kas. 419; Universal Life Ins. Co. v. Ledezma, 61 S.W.2d 165. (d) The laws of Missouri govern as to the competency of witnesses and evidence. Menard v. Goltra, 40 S.W.2d 1053; 15 C. J. 596; 70 C. J. 377. (2) The misstatements of Mason were not material or fraudulent and did not avoid the policy. Darling v. United Benefit Life, 153 Kan. 75, 109 P.2d 78; Sharrar v. Capitol Life Ins. Co., 102 Kan. 650, 171 P. 622; Day v. National Reserve Life Co., 144 Kan. 619, 62 P.2d 925; Jackson v. National Life & Acc. Ins. Co., 150 Kan. 86, 90 P.2d 1097; Scott v. National Reserve Life Ins. Co., 143 Kan. 678, 56 P.2d 176; Houston v. Met. Ins. Co., 97 S.W.2d 856; Farragher v. Knights & Ladies of Security, 98 Kan. 601, 159 P. 3; 4 Couch Cyc. of Ins. Law, 2710; Doran v. John Hancock Life Ins. Co., 116 S.W.2d 172; Chambers v. Met. Life Ins. Co., 138 S.W.2d 29; Mutual Life v. Ontario Metal Products Co., 1 D. L. R. (1925) 583. (3) Defendant's testimony that insurance companies would not insure a person with gonorrhea was not conclusive, but was a matter for the jury, in determining the question of materiality. P. Mutual Ins. Co. v. Johnson, 74 F.2d 367; Huey v. American National Ins. Co. (Texas), 45 S.W.2d 340. (4) The trial court properly enjoined the defendant from interfering with its jurisdiction. 32 C. J. 87; State ex rel. St. Charles Bank v. Hall, 12 S.W.2d 91; State ex rel. v. Sullivan, 107 S.W. 487; Julian v. Commercial Assurance Co., 279 S.W. 740. (5) The penalty for vexatious appeal should be assessed against the defendant. Sec. 1230, R. S. Mo. 1939; Bonzon v. Met. Life Ins. Co., 143 S.W.2d 336; Prudential Ins. Co. v. German Mutual Ins. Co., 142 S.W.2d 500.

William C. Michaels and Ralph M. Jones for appellant.

Harry Cole Bates and Michaels, Blackmar, Newkirk, Eager & Swanson of Counsel.

(1) Defendant's request for a peremptory instruction at the close of the whole case should have been sustained. The misrepresentation being conclusively shown by the documentary evidence, and there being no question as to its materiality under the tests laid down in the former opinion of this court, the matter should have been ruled by the court. Stewart v. Am. Life Ins. Co. (Kan.), 89 F.2d 743; N. Y. Life Ins. Co. v. McCurdy, 106 F.2d 181; Columbia Nat. Life v. Rodgers, 93 F.2d 740; Scott v. Nat. Reserve Life Ins. Co., 144 Kan. 224, 58 P.2d 1131; DePee v. Nat. Life & Acc. Ins. Co., 144 Kan. 751, 62 P.2d 933; Klein v. Farmers & Bankers Life Ins. Co., 132 Kan. 748, 297 P. 730; Brown v. Met. Life Ins. Co., 146 Kan. 300, 69 P.2d 1110; Becker v. Kan. Cas. & Surety Co., 105 Kan. 99, 181 P. 549; Russell v. United Cas. Co., 123 Kan. 282, 255 P. 65; Met. Life Ins. Co. v. Madden, 117 F.2d 446; Fountain & Herrington v. Mutual Life Ins. Co., 55 F.2d 120; Shaner v. West Coast Life Ins. Co., 73 F.2d 681; Jeffress v. N. Y. Life Ins. Co., 74 F.2d 874; Malloy v. N. Y. Life Ins. Co., 103 F.2d 439; Great Northern L. Ins. Co. v. Vince, 118 F.2d 232; Mutual L. Ins. Co. v. Hurni Packing Co., 260 F. 641; Maggini v. West Coast Life Ins. Co., 136 Cal.App. 472, 29 P.2d 263; California-Western States Life Ins. Co. v. Feinstein, 15 Cal.2d 413, 101 P.2d 696; Met. Life Ins. Co. v. Becraft, 213 Ind. 378, 12 N.E.2d 952; Mutual Life Ins. Co. v. Mullan, 107 Md. 457, 69 A. 385; Geer v. Union Mut. Life Ins. Co., 273 N.Y. 261, 7 N.E.2d 125; Kerpchak v. Jno. Hancock Mut., 97 N.J. L. 196, 117 A. 836; Penn Mutual v. Craig, 240 N.Y.S. 56, aff'd, 244 N.Y.S. 902; Mut. L. Ins. Co. v. Leaksville Woolen Mills, 172 N.C. 534, 90 S.E. 574; Equitable Life Assur. Soc. v. Ashby, 215 N.C. 280, 1 S.E.2d 830; Mut. Life Ins. Co. v. Chandler, 120 Ore. 694, 252 P. 559; Lutz v. Met. Life Ins. Co., 186 Pa. 527, 40 A. 1104; Rigby v. Metropolitan, 240 Pa. 332, 87 A. 428; Bailey v. P. Mut., 336 Pa. 62, 6 A.2d 770; Myers v. Mutual Life, 83 W.Va. 390, 98 S.E. 424; Harris v. N. Y. Life, 86 W.Va. 638, 104 S.E. 121; Lewis v. N. Y. Life, 201 Mo.App. 48, 209 S.W. 625. (a) Even if the applicant had actually recovered from the ailment at the time of the misrepresentation, such fact would not make its materiality a jury question. Brown v. Metropolitan, 146 Kan. 300, 69 P.2d 1110; Penn Mut. v. Craig, 240 N.Y.S. 56 (Affirmed 244 N.Y.S. 902); Metropolitan v. Becraft, 213 Ind. 378, 12 N.E.2d 952. (b) The subject of the misrepresentation having been made material by the parties themselves, the contract providing that the determination of his insurability on reinstatement rested solely with the company, and the applicant having agreed that there should be no liability on the reinstatement unless his representation was true, there is no question for the jury as to its materiality. Brown v. Metropolitan, 146 Kan. 300, 69 P.2d 1110; Geer v. Union Mut. Life, 273 N.Y. 261, 7 N.E.2d 125; Klein v. Farmers & Bankers Life, 132 Kan. 748, 297 P. 730; Jeffries v. Economical Life Ins. Co., 22 Wall. 47, 22 L.Ed. 833; California-Western States Life v. Feinstein, 15 Cal.2d 413, 101 P.2d 696; Greenberg v. Continental Cas. Co., 24 Cal.App. (2d) 506, 75 P.2d 644. (c) Misrepresentations affecting the moral risk are always material. Becker v. Kan. Cas. & Surety Co., 105 Kan. 99, 102; DePee v. Nat. Life & Acc. Ins. Co., 144 Kan. 751-4. (2) Remarks of plaintiff's counsel in closing argument to the jury were prejudicially erroneous. Foster v. Kain (Mo. App.), 133 S.W.2d 1114. (3) The court erred in restraining defendant's further prosecution of its declaratory judgment action in the United States District Court against the beneficiary of the policy. Kline v. Burke Const. Co., 260 U.S. 226.

OPINION

SHAIN, P. J.

This is an action to recover the proceeds of a $ 5,000 policy issued by defendant, appellant herein, on the life of Albert L. Mason, deceased, and wherein Gertrude Mason, his wife, was beneficiary.

Both insured and beneficiary were citizens of Kansas at the time of insured's death and the stated beneficiary is still a resident of that State.

The plaintiffs, respondents herein, sued as assignees of interest of beneficiary. Plaintiff Pouncey is a citizen and a resident of the State of Missouri, and plaintiff Chambers is a citizen and a resident of the State of New York.

This suit was instituted in the Circuit Court of Jackson County, Missouri, on August 28, 1937. The petition of plaintiffs is in the usual form and all allegations necessary to recovery are made. The policy was issued July 23, 1924, lapsed for non-payment of dues January 23, 1936, and reinstated in May, 1936; insured died April 6, 1937.

The defendant denies liability and answers by general denial and special defense plea based on alleged misrepresentation made by insured to the effect that at the time of his application for reinstatement he was in sound health, and that he had not consulted any physician or physicians since the date of the issuance of said policy.

The defendant made specific allegations as follows:

"That the insured died on or about April 6th, 1937, and that Gertrude Mason made claim for the benefits of said policy and furnished to the defendant proofs of the death of the insured, including the affidavits of physicians, who had attended or treated the insured; that defendant thereupon for the first time learned from the affidavit of insured's attending physician that he was not in sound health at the date of his application for reinstatement, and that he had had an illness and had consulted a physician, to-wit: that the insured at the date of said application and for two months prior thereto had been suffering from gonorrhea and had been consulting such physician and receiving treatments for such condition every three or four days for two months prior to said application; ('that the insured was also afflicted with a urethral stricture and was being treated by the physician therefor prior to and at the time of the application,') ^[*] that such facts were material to the risk, were unknown to defendant and the reinstatement would not have been granted had defendant been advised thereof that the concealment of such facts and the misrepresentation of insured with respect thereto were for the purpose of deceiving the defendant, which relied thereon, and the reinstatement of said policy was therefore procured by fraud, was without consideration and null and void, and there was and is no liability by reason of the attempted reinstatement and no liability under said policy, except for the amount of non-participating paid-up term insurance placed in force after the lapse of said policy for non-payment of the premium...