Eichwedel v. Metropolitan Life Insurance Co.

• Citation: 270 S.W. 415,216 Mo.App. 452
• Parties: IDA EICHWEDEL, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Respondent. *
• Decision Date: 03 February 1925
• Court: Missouri Court of Appeals

270 S.W. 415

216 Mo.App. 452

IDA EICHWEDEL, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Respondent. *

Court of Appeals of Missouri, St. Louis

February 3, 1925

Appeal from the Circuit Court of the City of St. Louis.--Hon Anthony F. Ittner, Judge.

AFFIRMED.

Judgment affirmed.

James J. O'Donohoe for appellant.

(1) The laws of Illinois are not involved here, only in so far as they are proven, for courts do not take judicial notice of the statutes of another State; they must be pleaded and proven. Rees v. Metropolitan Life, 251 S.W. (Mo App.) 395; Stricker v. Metropolitan Life, 237 S.W. (Mo. App.), l. c. 896, cases cited. "In the absence of proof, the only assumption possible as to the statutes of a sister State is that they are like our own." Stricker v. Metropolitan Life, 237 S.W. (Mo. App.) 896, cases cited. But defendant's contentions are not tenable under either the law of Missouri or Illinois. (2) By introducing the policy in evidence and proving the death of the insured, plaintiff established a prima-facie case, and cast the burden on defendant of pleading and proving an affirmative defense. Menzenworth v. Ins. Co., 249 S.W. (Mo. App.) 113; Foster v. Ins. Co., 233 S.W. (Mo. App.) 499; Gill v. Sovereign Camp of W. of W., 209 Mo.App. 62; Gruwell v. Nat. Council, 126 Mo.App 496. (3) The court erred in giving to the jury defendant's requested instructions 1, 2, 3 and 4; and further erred in refusing to give plaintiff's requested instructions 1 and 2, for the following, amongst other reasons, namely: (a) At the time action was brought on the policy in question more than two years had elapsed from the date of policy, and under its terms it was then incontestable, although insured had died within the contestable period. Lavelle v. Metropolitan Life, 209 Mo.App. 330; Ramsay v. Ins. Co., 297 Ill. 592; Monahan v. Metropolitan Life, 283 Ill. 141; Lokie v. Metropolitan Life, 17 Illinois Review, Appellate Court Digest, June, 1922, p. 94; Mutual Life v. Hurni Packing Co., 263 U.S. 167; Same case, 280 F. 18; Jefferson Standard Life v. McIntyre, 294 F. 886; Mutual Life v. Rose, 294 F. 122; N.W. Mutual Life v. Pickering, 293 F. 496, citing approving Lavelle v. Metropolitan Life, 209 Mo.App. 330, writ of certiorari denied in 263 U.S. 720; Thistle et al. v. Equitable Life Soc., 261 S.W. 667; Hardy v. Ins. Co., 180 N.C. 180; Ebner v. Ohio State Life, 69 Ind.App. 32; Reliance Life v. Thayer, 84 Okla. 238; Humpston v. State Mutual Life, 256 S.W. 438; Plotner v. Ins. Co., 183 N.W. (N. D.) 1000; Mutual Life v. Buford, 61 Okla. 158; Am. Trust Co. v. Life Ins. Co., 173 N.C. 558; Missouri State Life v. Cranford, 257 S.W. 66. (b) Defendant neither averred nor proved that the alleged misrepresentations made by insured in his application for the policy were "willfully and knowingly made for a fraudulent or corrupt motive." Simpson v. Metropolitan Life, 263 S.W. (Mo. App.) 521. The statements of insured were made in good faith and without intent to deceive. Good health is a relative term and a matter of opinion. Defendant's medical examiner considered the applicant to be in good health. Good health means same condition of health as at the time of making application. Fid. Mut. L. Ins. Co., 111 Miss. 142; Metropolitan Life v. Moore, 117 Ky. 651; Johnson v. Royal Neighbors, 253 Ill. 570. (c) Under the stipulation of the policy reading: "All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid this policy or be used in defense of a claim hereunder, unless it is contained in the written application therefor and a copy of such application is securely attached to this policy when issued," the misrepresentation defense is not available. Livingston v. Union Central Life Ins. Co., 115 S.C. 128, 136. (d) Answers to compound questions in an application for insurance, true in part, do not invalidate the policy. Van Wormer v. Metropolitan Life, 188 Ill.App. 166; Baker v. McMurry Contracting Co., 282 Mo. 707, 708. And, while the application is made up of declarations, yet the same are in reality questions, "because the graphic form of the printing without punctuation at the end and with a blank space to be filled out indicates an interrogation rather than an assertion. Neither affirmation nor negation can be predicated upon a mere omission under these circumstances." Everson v. General Accid. & Assur. Corp., 202 Mass. 169, 177. Several questions propounded in the application are unanswered, and an "omission to answer is not, of course, or ordinarily, a negative answer, and merely founds a waiver of the answer by the insurer." Nugent v. Greenfield Life Assn., 172 Mass. 285, cases cited; Brown v. Greenfield Life Assn., 172 Mass. 498, 502. (e) Since there is no reference in the policy to the medical examination or the answers made to the medical examiner, same can lay no foundation for the defense of misrepresentations. Becker v. Colonial Life, 133 N.Y.S. 481. And the medical examiner's report is a part of the application. Raun v. Ins. Co., 129 Iowa 725. (f) Whether a representation is material is a question for the jury and not for the court. Section 6142, R. S. 1919; Provident-Savings Life Assur. Soc. v. Hadley, 102 F. 856; Landes v. Ins. Co., 190 Pa. St. 536; Manufacturers & Merchants' Mut. v. Zeitinger, 168 Ill. 286; Mascott v. Ins. Co., 69 Vt. 116. Hence defendant's given instructions are erroneous. (g) The defendant failed to prove that the policy would not have been issued had the real facts been known to it respecting which the alleged misrepresentations were made. Christian v. Ins. Co., 143 Mo. 460; Ritchey v. Insurance Co., 104 Mo.App. 146; Summers v. Ins. Co., 90 Mo.App. 691; Caldwell v. Ins. Co., 245 S.W. (Mo. App.) 602; Melville v. Business Men's Assur. Co., 253 S.W. (Mo. App.) 68. The medical evidence and records introduced by defendant should have been excluded, for they violate the privileged communication statute and the hearsay rule. Cradick v. Insurance Co., 256 S.W. (Mo. App.) 501; State ex rel. v. Tune et al., 199 Mo.App. 404, writ of certiorari quashed 276 Mo. 688; Hultzen v. Railroad, 159 Mo.App. 370, 376; Smart v. Kansas City, 208 Mo. 162. (5) The court erred in giving defendant's instruction No. 5 found on page 153 of the abstract, for a release based on return of premium is without consideration, void and of no binding effect. Stricker v. Metropolitan Life, 237 S.W. (Mo. App.) 894; Dodt v. Ins. Co., 186 Mo.App. 168; Jenkins v. Ins. Co., 79 Mo.App. 55. And since the amount of the policy was fixed and certain, release of the entire policy, even upon payment of part, would be without consideration and beneficiary might still sue and recover the residue, and that, too, without return or tender of the amount paid. Plews v. Burrage, 274 F. 885; Indiana D. & W. Ry. Co., 201 Ill. 154; Halslag v. Morse, 188 Ill.App. 608; Steinberg v. Schwartz, 219 Ill.App. 142; Woodbury v. U. S. Cas. Co., 284 Ill. 227; Carver v. Fraternal Citizens, 103 Kans. 824; N. A. Acc. Ins. Co. v. Miller, 193 S.W. (Tex. Civ. App.) 750; Sanford v. Royal Ins. Co., 11 Wash. 653; King v. Ry., 72 S.E. (N. C.) 801; Jones v. Commercial Trav. Mut. Acc. Assn., 114 N.Y.S. 589; Rocci v. Mass. Acc. Co., 222 Mass. 345; Harms v. Casualty Co., 172 Mo.App. 241; Biddlecom v. Assur. Co., 167 Mo.App. 581; Hausen v. Crawford, 130 Mo.App. 232; Crowder v. Casualty Co., 115 Mo.App. 535; Goodson v. Accident Ass'n, 91 Mo.App. 339.

Fordyce, Holliday & White and Walter R. Mayne for respondent.

William J. Tully of Counsel.

(1) Appellant's bill of exceptions shows that appellant at the trial saved no exceptions to the decision of the court ruling on the giving and refusing of instructions. There is nothing before this court but the record proper. Therefore the verdict of the jury should be affirmed. Tyon v Wabash Railway Co., 207 Mo.App. 322; 3 Corp. Jur., sec. 802, p. 895; Idem, sec. 843, p. 954; Elliott's Appellate Procedure, secs. 785 and 786; State v. Stevens, 242 Mo. 439; State v. Pfeifer, 267 Mo. 23; State v. Reed, 143 Mo.App. 583; Ross v. Railroad, 141 Mo. 390; Stauffer v. Railroad, 243 Mo. 305; Ross v. Grand Pants Co., 241 Mo. 296; Hubbard v. Gates, 228 Mo. 610; Building Co. v. Hopkins, 204 Mo. 652-3; Mexico v. Barnes, 158 Mo.App. 612; McKee v. Dry Goods Co., 152 Mo.App. 241; Waller v. Railroad, 83 Mo. 608. Nor does the act of the stenographer in noting an exception when none was really taken, nor any rule or custom or practice of the court dispensing with the taking and saving of the exception at the time of the ruling satisfy the law. 3 Corp. Jur., sec. 802, p. 898; Green v. Terminal R. R. Asso., 211 Mo. 18; Burdoin v. Town of Trenton, 116 Mo. 358; Kansas City v. Oil Co., 140 Mo. 458; Howes v. Colburn, 165 Mass. 385; Moore v. Royal Oak Lumber Co., 171 Mich. 400. Rule 37 of the Rules of Practice of the Circuit Court, St. Louis, Missouri, provides: "Exceptions to adverse rulings during the trial, including the giving and refusing of instructions, will be considered as waived (and not saved, as of course) unless expressly saved to each ruling at the time, and no stipulation to the contrary will be recognized or held valid by the court." This rule was in force in Division No. 4 at the time of the trial of this case, and appellant's counsel was duly informed of such fact by a sign appearing in the court room to the same effect. Tyon v. Wabash Railway Co., supra. (2) From the evidence in the case the verdict and judgment was for the right party on the merits and the verdict of the jury should not be disturbed. Grohman v. Maccabees, 237 S.W. 875. (3) Where an insurance contract is negotiated, the policy is delivered and the premiums are paid in the State in which the insured resides, the policy is to be construed...