Emery v. New York Life Ins. Company

• Decision Date: 11 April 1927
• Docket Number: 25552
• Citation: 295 S.W. 571,316 Mo. 1292
• Parties: Lula J. Emery v. New York Life Insurance Company, Appellant
• Court: Missouri Supreme Court

295 S.W. 571

316 Mo. 1292

Lula J. Emery v. New York Life Insurance Company, Appellant

No. 25552

Supreme Court of Missouri

April 11, 1927

Transferred from Springfield Court of Appeals.

Reversed.

Frank B. Williams and John T. Sturgis for appellant.

(1) The evidence abundantly shows, and the court found as a fact that the insured was at the time she applied for the insurance afflicted with a serious and dangerous disease which caused her death within six months and that she had knowledge of her condition. She made no mention of this in her medical examination but concealed and misrepresented her physical condition. Where the matter or thing misrepresented contributes to the death, as in the case here, the law as to material misrepresentations applies under our statute in all its vigor, and the policy is void. Benson v. Life Ins Co., 161 Mo.App. 480; Smith v. Mystic Workers, 196 S.W. 62; Adams v. Amer. Patriots, 159 Mo.App. 340. (2) The only defense interposed is that the examining physician could and did during his examination discover the insured's affliction with goiter and that, notwithstanding, he also reported to the defendant that the applicant was free of disease, yet to his knowledge, casually obtained if at all, was the knowledge of the defendant. This is not a case, however, where the applicant honestly and correctly states the facts to the examining physician and he incorrectly records same, or where the answers are those of the examining physician and not of the applicant. Here the applicant solemnly states that she has read her answers and they are "written as made by me." The examining physician certifies that the answers are written by him "exactly as made by the applicant." If the physician did discover by the insured's mere appearance that her answers were false, then they colluded and conspired to defraud the defendant. This avoids the policy. 25 Cyc. 803; 14 R. C. L. 1177, secs. 252, 253; Mallen v. Life Association, 168 Mo.App. 503; Floyd v. Modern Woodmen, 166 Mo.App. 169; Elliot v. Maccabees, 88 P. 929, 13 L. R. A. (N. S.) 856; Equitable Life v. Hazelwood, 12 S.W. 621, 7 L. R. A. 217; Triple Line Indemnity Co. v. Williams, 26 So. 19, 77 Am. St. 34; Globe Ins. Co. v. Duffy, 25 A. 227; Hook v. Michigan Mutual, 90 N.Y.S. 56; Centinental Life v. Porham, 16 S.W. 316; Maier v. Fidelity Mutual, 78 F. 566; Rinker v. Aetna Life Ins. Co., 64 A. 82, 112 A. S. R. 773. This case should be distinguished from the line of cases where the applicant is honest in making answers and the agent or examining physician is responsible for the form or truth of the answer as he records it, or where the applicant trusts the agent that does not know or comprehend the answers made. In such cases the applicant's good faith and freedom from intentional misrepresentation acts as an estoppel. Shotliff v. Modern Woodmen, 100 Mo.App. 138; Hollenbeck & Co. v. Insurance Co., 133 Mo.App. 57; Beyer v. Insurance Co., 141 Mo.App. 589; Kirbs v. United Order of Foresters, 191 Mo.App. 538; Modern Woodmen v. Angle, 127 Mo.App. 100. (3) The insured further misrepresented and concealed the fact that she had within the last year (the question asked covered five years) consulted and been treated by a physician, Dr. Cox, for the very disease which contributed to and brought about her death. She was asked to give the names of all the physicians whom she had consulted or been treated by and for what illness or ailment and gave only Dr. Love for tonsils, though she had both consulted and been treated by Dr. Cox for the goiter which brought about her death. She had also consulted Dr. Hogeboom at the local Frisco Hospital and he told her she had goiter. All was misrepresentated or concealed. There is no pretense that the examining physician discovered this by merely looking at her, as he might have done as to the goiter itself. This was a misrepresentation as to a matter which contributed to her death and avoids the policy. Lynch v. Insurance Co., 150 Mo.App. 461; 14 R. C. L. 1174, sec. 253; 2 Cooley's Briefs on Insurance, 1166; 25 Cyc. 816; Lewis v. Life Ins. Co., 201 Mo.App. 48; McDermott v. Modern Woodmen, 97 Mo.App. 636; Aloe v. Mutual Reserve Ins. Co., 147 Mo. 561; Modern Woodmen v. Angle, 127 Mo.App. 102; Rigby v. Met. Life Ins. Co., 87 A. 428; Crosse v. Supreme Lodge, 254 Ill. 80; Timlin v. American Patriots, 95 A. 104; Mutual Life v. Hilton-Green, 241 U.S. 613; Aetna Life v. Moore, 231 U.S. 543; Gardner v. North State Life, 163 N.C. 367; March v. Mutual Life, 186 Pa. St. 629; Metropolitan Life v. Burbaker, 78 Kan. 146; Cobb v. Covenant Mutual Benefit, 153 Mass. 176; Sparer v. Travelers, 173 N.Y.S. 673; Lee v. New York Life, 80 So. 652; Mutual Life v. Hurni Packing Co., 260 F. 641.

Hay & Flanagan and James E. Ruffin for respondent.

(1) The principal is charged with the information of the agent, and whether the agent discloses same or not he is conclusively presumed to have done so. The examining physician was the agent of the defendant company. His information acquired in the performance of his duty is the information of his principal. His duty required him to examine the insured. In the examination of the insured he acquired information of the existence of the goiter. That information was the information of the defendant. The examining physician was engaged by the defendant because he was a physician. As a physician he was enabled to make proper examinations, and as a physician he knew a goiter when he saw it. Shotliff v. Modern Woodmen, 100 Mo.App. 138; Johnson & Co. v. Insurance Co., 143 Mo.App. 441, 453; Cotten v. Fidelity Co., 41 F. 506. (2) The evidence discloses that the goiter was very perceptible and further that the examining physician inspected her neck and saw the goiter. The physician's knowledge was the knowledge of the defendant. Thomas v. Ins. Co., 20 Mo.App. 138; Bennett v. Standard Acc. Ins. Co., 237 S.W. 144; Modern Woodmen, 166 Mo.App. 166. (3) Aside from defendant's general denial its answer has for its purpose the cancellation of the policy after the death of the insured, which cannot be done. There is no allegation that any answer of the insured is a warranty. (4) The failure of the insured to inform the defendant of the names of physicians could not contribute to the death of the insured in this cause. No representation shall constitute a defense unless the fact misrepresented actually contributed to the death. Sec. 6142, R. S. 1919; Harms v. Casualty Co., 172 Mo.App. 241, 251; Dodt v. Ins. Co., 186 Mo.App. 175; Keller v. Ins. Co., 198 Mo. 440, 462. The defendant is not a fraternal society, and Section 6142 applies herein. (5) There is a distinction between the right of an insurance company to ask for a cancellation of a policy for misrepresentation prior to the death of the insured, and the right to interpose the misrepresentation as a defense to an action on the policy after the death of the insured. (6) A breach of warranty or a misrepresentation does not ipso facto render the policy void, but voidable merely at the option of the insurer. Life Ins. Co. v. Glaser, 245 Mo. 377, 389. After the death of the insured the misrepresentation about which the insurer complains must be shown to be material and must be concerning a fact which contributed to the death of the insured. (7) There is no evidence of any collusion between the insured and the examining physician, and even if there ever were the defendant did not so plead. Had insured intended to collude with the agent of the defendant she could have secured a policy for about one half the premium paid on the same company, but she chose the policy calling for the larger premium. (8) No direct question was asked of Pauline in regard to the existence of the goiter, and as the physician could see the goiter, there was no concealment. (9) Defendant does not plead that it was deceived by the failure to mention the goiter, and even had it so pleaded the knowledge of the examining physician would disprove the allegation. The element of deception must enter before fraud can exist. Remmers v. Remmers, 217 Mo. 557.

Ragland, J. Graves, P. J., and Atwood, J., concur, Atwood, J., in separate opinion; Gantt, J., not sitting.

OPINION

RAGLAND

This case comes to the writer for opinion on reassignment. It is a suit on a policy of life insurance. In the trial court there was a judgment for plaintiff. Defendant was allowed an appeal to the Springfield Court of Appeals where the judgment was affirmed. One member of that court, dissenting from the conclusions reached by the majority, asked that the cause be certified to this court, which was accordingly done.

The policy in suit is for $ 1,000; it is a twenty-pay life old-line policy, bearing date, July 16, 1919. It was issued on the life of Pauline Emery, and plaintiff, the mother of said Pauline, is named as the beneficiary therein. The insured died on the 20th day of December, 1919, and this suit was brought to the May term, 1922, of the Circuit Court of Greene County.

The petition is conventional. The gist of the defense is embodied in the following excerpt from the answer:

"The defendant further says that the policy of insurance sued on herein was procured by fraud and false representations in the application therefor as to the physical condition and health of the said insured, Pauline Emery, as before stated, and by concealment of the fact that she was then afflicted with the disease of goiter, which disease later caused her death; and had not consulted other physicians; that said false representations and concealments were material and rendered said policy null and void; that the said incomplete and untruthful answers of the insured, as to her health and physical condition, and the misrepresentations and concealments, as to her being...