Coscarella v. Metropolitan Life Ins. Co.

• Decision Date: 03 June 1913
• Citation: 157 S.W. 873
• Parties: COSCARELLA v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

157 S.W. 873

COSCARELLA v. METROPOLITAN LIFE INS. CO.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

Rehearing Denied June 17, 1913.

1. INSURANCE (§ 147) — CONSTRUCTION — LAWS GOVERNING — PLACE OF CONTRACT.

Where an insurance contract is negotiated, the premiums paid, and the policy delivered in the state in which the insured resides, the policy is to be construed according to the laws of that state.

2. INSURANCE (§ 668) — MISREPRESENTATIONS AS TO HEALTH — STATUTORY PROVISIONS.

Under Rev. St. 1909, § 6937, providing that all representations made in obtaining life insurance policies are to be treated, not as warranties, but as representations, immaterial unless made with respect to the health of the insured which actually contributed to the cause of death, and that whether the misrepresented fact contributed to the death is for the jury, it was proper to submit to the jury, in an action upon an insurance policy containing a condition that no obligation was assumed unless the insured was in fact in sound health, the question whether the condition of the health of the insured at the date of the policy contributed to her death.

3. APPEAL AND ERROR (§ 1002) — VERDICT — CONCLUSIVENESS.

Where the proof of death furnished by the beneficiary under a life policy, providing that it created no obligation unless when the policy was issued the insured was in sound health, stated that the insured had been ill since before the policy was issued, and the company's physician in the application for insurance stated that at that time insured was in good health, the verdict of the jury against the insurance company is conclusive upon appeal.

4. EVIDENCE (§ 263) — ADMISSIONS — PROOF OF DEATH OF INSURED — EXPLANATION.

Proofs of death furnished by a beneficiary under a life insurance policy, which showed that the insured had been ill since before the issuance of the policy, are prima facie evidence against him as admissions; but they may be explained away or overthrown by him, whether made by himself or by another.

5. EVIDENCE (§ 263) — ADMISSIONS — PROOFS OF DEATH OF INSURED — EXPLANATION.

To meet statements in the proofs of death as to the health of the insured, it was competent to introduce the declaration of the company's physician attached to the application that the insured was in good health, even though the policy contained the clause that it constituted the entire contract by the parties, since Rev. St. 1909, § 6978, requiring the application to be attached to or indorsed upon the policy, makes it a part thereof.

6. INSURANCE (§ 602) — ACTIONS UPON LIFE POLICY — DAMAGES FOR VEXATIOUS DELAY.

Under Rev. St. 1909, § 7068, providing that the jury in an action upon a life policy may award damages and attorney's fee where

there is vexatious delay and refusal to pay, the jury may conclude that a delay was vexatious from all the circumstances in the case, even though there be no direct testimony to that effect.

7. INSURANCE (§ 602) — LIFE POLICY — DEMAND.

Where an agent of the beneficiary presented a life insurance policy to the superintendent of the insurance company and requested payment, and the superintendent, after a few days' delay, denied liability, there was a sufficient demand for payment.

8. JUSTICES OF THE PEACE (§ 98) — REQUEST — ACTIONS BEFORE JUSTICE OF PEACE.

Under Rev. St. 1909, §§ 7412, 7413, providing that when a suit before a justice of the peace is founded upon a written instrument it shall be filed with the justice as the foundation of the action, such instrument, and not the statement filed therewith, determines the right to recover, and the beneficiary under a life insurance policy suing in a justice court is entitled to interest under Rev. St. 1909, § 7179, providing for 6 per cent. interest on all written contracts when no other interest is agreed, even though he did not ask for interest in his petition.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Carmino R. Coscarella against the Metropolitan Life Insurance Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Nathan Frank, M. W. Oliver, Richd. A. Jones, and Louis B. Sher, all of St. Louis, for appellant. James J. O'Donohoe, of St. Louis, for respondent.

NORTONI, J.

This is a suit on a policy of life insurance. Plaintiff recovered, and defendant prosecutes the appeal.

The policy is in the amount of $220. It appears that it was issued on April 11, 1910, on a written application executed by the insured a few days theretofore, to which was attached a detailed examination of the insured's physical condition and concerning her health by defendant's physician. By its terms the policy is payable to plaintiff, husband of the insured, in event of the prior death of his wife, and it appears she died May 10, 1910.

The principal matter relied upon in defense is a condition contained in the policy to the effect that no obligation is assumed by the insurance company unless on the date of the issue of the policy the insured is in sound health. The policy contains such a provision, and the evidence tends to prove that the insured was not in sound health at the time the policy was issued and delivered.

It is urged that the court should therefore have directed a verdict for defendant, and thus declared the force of the condition in the policy above mentioned without submitting the matter to the jury. It is said that such conditions in the policy are universally sustained as proper and enforceable in law, and the case of Bell v. Missouri State Life Ins. Co., 166 Mo. App. 390, 149 S. W. 33, is relied upon as so declaring the rule. The question involved here is to be determined by reference to our statute concerning life insurance declaring that misrepresentations made in obtaining a policy of life insurance are to be deemed immaterial except in those cases where it shall appear the fact misrepresented actually contributed to the cause of death. It is true that we declared the rule with respect to a condition in the policy postponing the taking effect of the insurance contract in event the insured was not in good health at the time, as argued by defendant in Bell v. Insurance Co., supra. But be that as it may, no such question as that presented here was made in that case. Indeed, there the contract under review was not within our statutes on the subject at all, but, instead, the policy invoked was an Arizona contract. The insured applied for the policy in the state of Arizona. It was issued in Missouri, but delivered to the insured in Arizona, where the premiums were paid and it became effective there as an insurance contract. For the facts, see Bell v. Insurance Co., above cited. Therefore the policy in judgment in that case was not within the influence of our statutes for the very good reason that it was an Arizona contract. See Cravens v. New York Life Ins. Co., 148 Mo. 583, 50 S. W. 519, 53 L. R. A. 305, 71 Am. St. Rep. 628. Here it appears the insured resided in St. Louis, where the insurance was negotiated, the premiums paid, and the policy delivered. Such a contract is to be determined in accordance with our law on the subject.

By section 6937, R. S. 1909, it is provided in substance that no representations made in connection with obtaining a life insurance policy shall be regarded as warranties. On the contrary, all such representations are to be regarded and treated as immaterial unless it shall appear that a misrepresentation was made with respect to a fact concerning the health of the insured which condition of health so represented actually...