Gordon v. Royal Neighbors of America
| Citation | 90 S.W.2d 198 |
| Decision Date | 18 February 1936 |
| Docket Number | 23642 |
| Parties | MARGIE J. GORDON, (Plaintiff) Respondent, v. ROYAL NEIGHBORS OF AMERICA, a Corporation, (Defendant) Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, City of St. Louis. Hon. Frank Landwehr Judge.
Respondent's motion for rehearing overruled.
W. E Bennick
ON MOTION FOR REHEARING.
It will be recalled that plaintiff's right to recover from defendant on the policy or certificate in suit was defended against upon the ground that in the insured's application to the company there had appeared certain misstatements regarding his age, his previous rejection by other insurance companies, and the soundness of his health at the time his application was given. Moreover it is well to bear in mind, just as we have already pointed out in our principal opinion, that by virtue of defendant's status as a fraternal beneficiary association the misrepresentation statute is without application to the case, so that if any or all of such statements of the insured were actually false as claimed by defendant, then under the terms of his contract with defendant the insured's certificate was voided and nullified, and both his own rights and those of his beneficiary thereunder were thereby forfeited and rendered of no effect.
Defendant has contended with much insistence that the fact of all of such particular misstatements and misrepresentations appeared in the case as a matter of law and that it should therefore have had a directed verdict in its favor at the close of all the evidence, but in our principal opinion we have disallowed this contention and have upheld the court's submission of the case upon the theory that all of such issues were for the jury to determine. But though the lower court did refuse defendant's requested peremptory instruction, - and properly so as we have pointed out - it nevertheless refused to give defendant's requested instruction C, which was the one and only instruction requested by defendant for the purpose of submitting all of such defenses to the jury, and therefore the court in effect denied to defendant the right to rely upon its defense of falsity of the insured's representations regarding his previous rejection by other insurance companies and the soundness of his health, although both of such defenses had been abundantly supported by substantial evidence from defendant's side of the case. We may repeat that so far as the issue of misrepresentation in respect to the insured's age is concerned, it was submitted to the jury under another instruction which was undoubtedly offered by defendant after the court had made known its refusal to give instruction C.
Because of the court's refusal to have given instruction C which we clearly felt that defendant was entitled to have had given under the state of the pleadings and evidence, we were constrained to reverse the judgment and remand the cause; and now we are confronted with plaintiff's motion for a rehearing in which she insists that we were wrong in our conclusion, and that instruction C was properly refused by the court inasmuch as the issues of misrepresentation regarding the insured's previous rejection by other insurance companies and the soundness of his health were not for the jury so as to have entitled defendant to have received the instruction in question.
Her present position apparently comes somewhat as an afterthought, since in her original brief, as her fourth point among her points and authorities, she expressly made the point that "whether the insured was rejected by other insurance companies; the age of the insured; and, whether or not he had had heart disease prior to signing the application to appellant, and at the time said benefit certificate was delivered to him, as well as to whether or not a physician attended him for heart disease prior to signing said application, are all, under the evidence, questions for the jury".
Moreover, in her printed argument she strongly reiterated such view of the case on her part as is evidenced by the following paragraph which we take the liberty of quoting therefrom;
"The allegations that Charles H. Gordon was older than 53 years at his next birthday at the time of signing the application to appellant; that he made applications to the American Savings Life Insurance Company of Kansas City, Missouri, and the Sentinel Life Insurance Company of Kansas City, Missouri, for life insurance policies; that he was treated by one or more physicians for heart disease prior to the date of signing said applications, and that he was not of sound body and health at the time of signing said application, were all controverted questions of fact in the trial of the case, and proper questions for the jury to determine."
But aside from any question of inconsistency on plaintiff's part in urging in one...
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