Fernandez v. Mut. Life Ins. Co.

• Decision Date: 05 February 1935
• Docket Number: No. 22813.,22813.
• Citation: 78 S.W.2d 526
• Parties: NIVA FERNANDEZ, RESPONDENT, v. MUTUAL LIFE INSURANCE COMPANY OF BALTIMORE, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

78 S.W.2d 526

NIVA FERNANDEZ, RESPONDENT, v. MUTUAL LIFE INSURANCE COMPANY OF BALTIMORE, A CORPORATION, APPELLANT.

No. 22813.

St. Louis Court of Appeals. Missouri.

Opinion filed February 5, 1935.

Appeal from Circuit Court of the City of St. Louis. — Hon. James F. Green, Judge.

AFFIRMED.

Jones, Hocker, Sullivan, Gladney & Reeder and Warren F. Drescher, Jr., for appellant.

(1) Under the incontestable clause of the policy involved, the defense of fraud can be made even after two years have elapsed from the date of the issuance of the policy. Mutual Life Ins. Co. of Baltimore v. Eaves, 2 S.W. (2d) 193. (2) The respondent is bound by the answers in the application for the insurance, and as the evidence is uncontradicted that said application contains a material misrepresentation, the appellant's demurrer at the close of all the evidence should have been sustained. Zeilman v. Central Mutual Ins. Assn., 22 S.W. (2d) 88; Emery v. New York Life Ins. Co., 295 S.W. 571; Applebaum v. Empire State Life (Pa.), 166 Atl. 768.

Hay & Flanagan for respondent.

Whether or not it is true that a misrepresentation was made in procuring a policy of insurance is a question of fact for the jury unless foreclosed by admission, and is not affected by insured's failure to read the application before signing it. Sec. 5732, Revised Statutes of of Missouri 1929; Mudd v. John Hancock Mut. Life Ins. Co. (Mo. App.), 39 S.W. (2d) 450; Zeilman v. Central Mut. Ins. Assn., 224 Mo. App. 145, 22 S.W. (2d) 88; Andrews v. Bull Dog Auto Fire Ins. Co., 291 S.W. 508; La Font v. Home Ins. Co., 193 Mo. App. 543, 182 S.W. 1029; Bank Sav. Life Ins. Co. v. Butler, 38 F. (2d) 972; Coleman v. Central Mut. Ins. Assn. (Mo. App.), 52 S.W. (2d) 22.

HOSTETTER, P.J.

This suit was instituted on May 11, 1931, in the Circuit Court of the City of St. Louis by the beneficiary under a life insurance policy to recover the sum of $500. The plaintiff is the widow of Gumersindo Fernandez, the insured.

The petition alleged the issuance of a policy by defendant on the 4th day of February, 1928, in consideration of a weekly premium paid to defendant of thirty-four cents, on the life of Gumersindo Fernandez, whereby the defendant agreed to pay to plaintiff the sum of $500 upon receipt of due proof of death of the insured; that the insured died on August 27, 1930, while said policy of insurance was in full force and effect; and that he had complied with all the terms of the policy as required of him and that plaintiff had done likewise since his death; that she had made due demand of the defendant for payment, which had been refused.

The defendant in its answer admitted the issuance of the policy, the death of the insured, the furnishing of due proofs of death, and that, in consideration of the premiums thereon to be paid it agreed, subject to the terms and conditions therein, to pay to plaintiff, the beneficiary, the sum of $500 upon receipt of proof of death of the insured during the continuance of the policy. The answer also admitted that the insured died on or about August 27, 1930, and that at the time of his death all the requirements of the policy had been complied with and all premiums paid and that due proof of death was furnished to defendant by the plaintiff and that the plaintiff had complied with all of the terms and conditions of the contract required of her and that defendant refused to pay the amount of said policy.

For further answer the defendant alleged that said policy was issued in consideration of the statements and representations made by the insured in his written application for said policy, made on the 26th day of January, 1928, by the terms of which contract of insurance the application is made a part thereof, and that in the said application the insured stated and represented, among other things, that he was in sound health; that he had never suffered from any disease; that he had not been treated by any physician at any time and that there were no physical or mental defects or infirmities existing at the time of the application for said policy; and that said policy contained the following clause:

"Incontestable — This policy will be incontestable after two years except for fraud, misrepresentation of age, or nonpayment of premium."

That said representations so made by the insured in his application for said policy of insurance, were false, fraudulent and untrue, and that at the time of said application, and for a long time prior thereto, the said insured was afflicted with tuberculosis, spondylitis, miliary tuberculosis, and enterocolitis, and that he had been treated therefor in the year 1925 at Barnes Hospital, St. Louis, Missouri, by physicians in attendance at said hospital, and that insured, on the date of the delivery of said policy, was not in good health, and was, at said time, suffering from the diseases above mentioned; that the death of the insured was caused by the diseases above set out, from which he was suffering on the date of the delivery of the policy; that there had been paid to defendant as premiums, $45.90, which, with interest, defendant tendered into court for the use of plaintiff.

Plaintiff's reply was a general denial. The plaintiff's testimony was as follows:

DIRECT EXAMINATION.

"My name is Niva Fernandez. I am the widow of Gumersindo Fernandez. My husband was 34 years of age when he died on August 27th, 1930, in St. Louis, Missouri. Plaintiff's Exhibit A is a policy of insurance involved in this case, that my husband had on his life. When my husband died I reported his death to the defendant insurance company and made a demand on them for the payment of the policy and also filed proofs of death with them. They did not pay this policy and refused to pay same."

CROSS-EXAMINATION.

"On January 26th, 1928, when my husband signed the application for this insurance, I was present; his brother was also present, and the agent of the company, whose name I do not remember. I listened to the conversation or questioning that took place while the application was being prepared, but I didn't watch to see what the agent did with reference to the answers, and I didn't see what was written in the answers. I do not remember all the questions the agent asked my husband, but I remember a few of them. My husband signed his name to the application. My husband could not read English. I could not read English very well at that time and cannot read it very well yet. My husband's brother could not read English. None of us tried to read the application, or looked at it. When I was handed the defendant's exhibits just now, I read part of them, but there are words I don't know what they mean. I could not read one-half as well at the time the application was taken out as I can now."

RE-DIRECT EXAMINATION.

"When the application for this insurance was signed by my husband the agent at first tried to get him to buy some more policies, but he didn't want them. He said he had plenty, more than he could pay. Finally the agent convinced him, and he said: `If you are going to write me a policy just go ahead,' and the agent started asking a lot of questions about his age and who he wanted to leave the money to, and asked if he had ever been to the hospital, and my husband said he had been to the Barnes Hospital. My husband's brother was there at the time. My husband at that time was tall and thin and was hunch backed a little bit, and walked kind of humpbacked. My husband, his brother and I were born in Spain. I don't know how long he had been in this country because I didn't know him when he came here. He could speak English a little, but not much, but he couldn't read nor write English. When the agent filled out the application for this insurance he just wrote on same and then gave it to my husband to sign, and my husband signed it. The agent didn't read it to him. There was no copy of the application attached to the policy (plaintiff's Exhibit A); the policy is now just as it was then. At the time my husband took out this policy of insurance he had another policy with the same company, one that he had taken out about two years before. The company paid that one, and I think I left it at the company. This was a $300.00 policy."

Plaintiff then offered in evidence the policy of insurance, being No. 5460127, issued by the defendant on February 4, 1928, on the life of Gumersindo Fernandez, in consideration of certain premiums then and thereafter to be paid, wherein it agreed, subject to the terms and conditions therein contained, to pay to Niva Fernandez, as beneficiary under said policy, the sum of $500, upon receipt of proof of death of said Gumersindo Fernandez, during the continuance of said policy.

Alfred Schaap, witness called by defendant, testified that he was connected with the defendant company from 1926 to 1928 or 1929 and was in its employ on January 26, 1928. He continued his testimony as follows:

"Mr. Gumersindo Fernandez was one of my policy-holders for about one and one-half years, and I used to call at his home about every two weeks to collect premiums. He had some policies on some members of his family, but I cannot recollect how many. I secured an application for a policy of insurance from him. Defendant's Exhibit 2 is the application I secured from Mr. Fernandez. I wrote the answers to the questions on the application and got the information contained in the answers from insured, Mr. Fernandez, the deceased. I always ask questions on all applications that I submit for answers, and, naturally, on this one I probably did the same thing. I heard Mrs. Fernandez testify. Neither she nor her husband nor her husband's brother advised me that Mr. Fernandez had been confined to Barnes Hospital previous to the application. No one that I can recall advised me that Mr. Fernandez was at said hospital, or was then or had been suffering from diseases previous to that time for which he had medical attention. There was no information given...