Drucker v. Western Indemnity Company of Dallas
| Decision Date | 16 July 1920 |
| Citation | 223 S.W. 989,204 Mo.App. 516 |
| Parties | JULIUS H. DRUCKER, Appellant, v. WESTERN INDEMNITY COMPANY OF DALLAS, TEXAS, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Thomas C. Hennings, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
James J. O'Donohoe and J. H. Drucker, for appellant.
(1) The defense of misrepresentations is an affirmative one, and, to be available, the following must be averred in the answer proven by the evidence and embraced in the instructions namely: (a) That the insured made false representations; (b) that he knew them to be false when made; (c) that said misrepresentations so made concerned a matter which actually contributed to the loss; (d) that the insurer did not know that the representations were false; and (e) that if it had known the same, it would not have issued the policy. Neither the defendant's pleadings, proof nor instructions meet those requirements. Huls v. Ins. Co., 207 S.W. (Mo App.) 270; Beck v. Ins. Co., 207 S.W. (Mo. App.) 248; Hicks v. Ins. Co., 196 Mo.App. 162; Bruck v. Ins. Co., 194 Mo.App. 529; Schuler v. Ins. Co., 191 Mo.App. 52; Clarkson v. Ins. Co., 190 Mo.App. 624; Buchholz v. Ins. Co., 177 Mo.App. 683; Roedel v. Ins. Co., 176 Mo.App. 584; Coscarella v. Ins. Co., 175 Mo.App. 130; Conner v. Association, 171 Mo.App. 364; Lynch v. Ins. Co., 150 Mo.App. 461; Salts v. Ins. Co., 140 Mo.App. 142; Williams v. Ins. Co., 189 Mo. 70; Harms v. Casualty Co., 172 Mo.App. 241; Keller v. Ins. Co., 198 Mo. 440; Jenkins v. Ins. Co., 171 Mo. 375; Kern v. Legion of Honor, 167 Mo. 471; Schuermann v. Ins. Co., 165 Mo. 641; Ashford v. Ins. Co., 98 Mo.App. 505. The misrepresentation defense is not available to defendant for the further reason that it failed to deposit in court for the benefit of plaintiff the premiums received on the policy. Sec. 6940 R. S. 1909; Thassler v. Ins. Co., 67 Mo.App. 505; Floyd v. Ins. Co., 72 Mo.App. 455; Lavin v. Ins. Co., 101 Mo.App. 434; Herzog v. Modern Brotherhood of America, 110 Mo.App. 328, l. c. 334; Thompson v. Royal Neighbors of America, 154 Mo.App. 109; Welsh v. Ins. Co., 165 Mo.App. 233; Kern v. Legion of Honor, 167 Mo. 471. Agent's knowledge is imputable to insurer. Schuler v. Ins. Co., 191 Mo.App. 52; Dubinsky v. Hartford Fire Ins. Co., 196 S.W. (Mo. App.) 1045; Hilburn v. Ins. Co., 140 Mo.App. 355; Strickland v. Casualty Co., 112 Me. 100; Newman v. Covenant M. B. Ass'n, 76 Iowa 56; Mutual Life v. Daviess, 87 Ky. 541; McGurk v. Met. Life, 56 Conn. 528; 1 Bacon (4 Ed.), sec. 179--cases cited; 7 Cooley, p. 2521 (c) (and cases cited). (2) The stipulation in the policy, namely: "This policy does not cover . . . any illness contracted within fifteen days from noon of the day this policy is issued," is void, for reasons: (1) It cuts off fifteen days from the term for which the premium was paid. Summers v. Fid. Mut. Aid Ass'n, 84 Mo.App. 605; Bean v. Aetna Life, 111 Tenn. 186; Teague v. Sowder, 121 Tenn. 132; Laurenzi v. Ins. Co., 131 Tenn. 644; Blackman v. Casualty Co., 117 Tenn. 578; Employers' Liability Assur. Corp. v. Morrow, 143 F. 750; Pittsburg & S. R. Co., v. Central Trust Co., 141 N.Y.S. 66; Vickers v. Electrozone Commercial Co., 67 N. J. Law Rep. 665. (2) It is repugnant to the general insuring clause of the policy, which promises unconditional immediate indemnity, and sharply conflicts with the application, which, in part, reads: "The company has issued this policy for a term of six months, beginning at twelve o'clock noon, . . . standard time, at the assured's residence address, on the 11th day of March, 1916." It is elemental that "where there are inconsistent provisions, effect will be given to the one most favorable to the insured." Burnett v. Insurance Co., 68 Mo.App. 343; 1 Bacon (4 Ed.), section 221, cases cited; 6 Cooley, pp. 630-639, cases cited. Forfeitures are not favored in law and the construction of a policy most favorable to the insured will be adopted. Canning Co. v. Guaranty & Accident Co., 154 Mo.App. 327; Settle v. Ins. Co., 150 Mo.App. 520; United Zinc Co. v. Accident Assur. Co., 144 Mo.App. 380; Roseberry v. Association, 142 Mo.App. 552. The plaintiff's peremptory instruction should have been given. Authorities, supra. (3) The attitude and remarks of the trial court constitute prejudicial error. Shephard v. Brewer, 248 Mo. l. c. 148, 149; Landers v. Railroad, 134 Mo.App. 80; Rose v. Kansas City, 125 Mo.App. 231.
Clarence T. Case and Victor J. Miller for respondent.
An insurance company is not required to deposit in court the premium it received on a health policy where it defends the action on the ground that the policyholder was guilty of fraud in the procurement of the policy because the policyholder is not entitled to recover back the premium under such circumstances. Vining v. Franklin Insurance Co., 89 Mo.App. 311, l. c. 323; Hellman v. National Council, Etc., 198 Mo.App. 308, l. c. 305; Aetna Life Insurance Company v. Paul, 10 Ill.App. 431; Hoyt v. Gilliman, 8 Mass. 336, Friesmuth v. Agawam Mutual Fire Insurance Co., 10 Cush. 588, l. c. 592; Fay v. Prudential Life Insurance Company, 80 A.D. 350, 80 N.Y.S. 683; Himely v. South Carolina Insurance Company, I Mill. Const. (S. C.) 154, 12 Am. Dec. 623. (2) The giving or refusing of instructions not specifically pointed out in the motion for new trial are not subject to review on appeal. Kansas City Disinfecting & Mfg. Co. v. Bates County, 273 Mo. 300; Wynne v. Wagoner Undertaking Company, 274 Mo. 593; Lampe v. United Railways Company, 202 S.W. 438; St. Louis Dairy Company v. Northwestern Bottle Company, 204 S.W. 281; Seitz v. Pelligreen, 199 Mo.App. 388; Nitchman v. United Railways Company, 203 S.W. 491; State v. Dinkelkamp, 207 S.W. 770; Heller v. Chicago & A. R. Co., 209 S.W. 567. (3) The mere fact that the trial court may in some way criticise the acts and conduct of an attorney in the trial of a case, such criticism not in any way amounting to a comment on evidence or the issues involved in the case, does not constitute ground for reversal. State v. Teeter, 239 Mo. l. c. 483; Farrar v. Railroad, 249 Mo. l. c. 226.
This is a suit based upon a combination accident and health policy, which insured the plaintiff against bodily injury or loss effected through accidental means, and also against disability from disease or illness. The schedule of indemnities set forth in the policy provides for the payment of the principal sum of $ 1500 for loss of life by reason of either of the causes above specified, and further for a weekly accident indemnity of $ 25, and a weekly illness indemnity of $ 25. There is a further provision for the payment of hospital expenses, not exceeding $ 12.50 per week.
The petition is in the usual form, and alleges that plaintiff was ill from April 2, 1916, to May 8, 1916, thus entitling plaintiff to the sum of $ 125 as a weekly illness indemnity; and further that the insured was confined to a hospital for four weeks from April 2, 1916, and under the terms of the policy was entitled to the sum of $ 50 for hospital indemnity.
The defendant's answer after admitting the issuance of the policy in suit, denies all other allegations in plaintiff's petition. The answer contains a further plea of misrepresentation made by the plaintiff at the time of the issuance of the policy to the effect that he was in sound condition mentally and physically, and that he did not have, nor had he within a year previous to the issuance of the policy, any local or constitutional disease, and that he had not received medical attention within two years previous to the issuance of the policy. These representations are alleged by the defendant to have been false and known to be such by the plaintiff at the time, and were a part of the consideration of the policy contract, and that the contract was issued by defendant relying upon the truth of such representations.
A further defense is set up that the policy contained a provision to the effect that the contract for indemnity and insurance did not cover any illness contracted within fifteen days from noon of the day said policy was issued; and that the illness and indemnity mentioned in plaintiff's petition was contracted within fifteen days from said time.
The reply was a general denial of the new matter set up in defendant's answer.
Upon a trial before a jury, there was a verdict for the defendant company followed by a judgment, from which plaintiff has appealed.
Plaintiff contends that error inhered in the court's action in permitting the defendant to interpose the defense of fraudulent representation in procuring the policy, in view of the fact that the defendant did not either in its answer or at the trial offer to return to the plaintiff the premium paid for the policy. We think this position of plaintiff sound and the point well taken, and this regardless of whether the particular policy in suit falls within the provisions of section 6940, Revised Statutes of 1909, which provides that in suits brought upon life policies, no defense based on misrepresentation shall be valid, unless the defendant shall, at or before the trial, deposit in court for the benefit of the plaintiff the premium received on such policies.
By its answer and by its proof defendant attempted to show that the plaintiff had procured this policy through false and fraudulent warranties and representations, which rendered the contract void ab initio. Neither by its answer nor at the trial, did the defendant offer to pay plaintiff or offer to pay into court for the benefit of the plaintiff the premium that it had received.
Defendant claimed that these representations...
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