Houston v. Metropolitan Life Ins. Co.

• Citation: 97 S.W.2d 856,232 Mo.App. 195
• Parties: GEORGE HOUSTON, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT
• Decision Date: 10 November 1936
• Court: Missouri Court of Appeals

97 S.W.2d 856

232 Mo.App. 195

GEORGE HOUSTON, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

November 10, 1936

Appellant's motion for rehearing overruled November 24 1936.

Petition for Writ of Certiorari denied March 24, 1937.

Rehearing Denied 232 Mo.App. 195 at 208.

Appeal from the Circuit Court of City of St. Louis--Hon. Robt. J Kirkwood, Judge.

AFFIRMED (on condition).

Fordyce White, Mayne & Williams and R. E. La Driere for appellant.

Leroy A. Lincoln of counsel.

(1) Verdict for defendant should have been directed by the trial court at the close of the entire case. Smiley v. John Hancock Mutual Life Insurance Co., 52 S.W.2d 12; Mudd v. John Hancock Life Insurance Company, 39 S.W.2d 450; Kirk v. Metropolitan Life Ins. Co., Supreme Court, Jan. 7, 1935; Winearski v. Hancock etc., 270 N.Y.S. 562; Emory v. New York Life Insurance Company, 257 S.W. 162, and 295 S.W. 571; Carter v. Insurance Company, 204 S.W. 399, 275 Mo. 84; State v. Allen, 276 S.W. 877, 310 Mo. 378; Simpson v. Metropolitan, 265 S.W. 521, also 282 S.W. 454; New York Life Insurance Company v. Hunter, 32 F.2d 173 (C. C. A.); Mutual Life Insurance Co. v. Hurni Packing Co., 260 F. 641 (C. C. A.); New York Life Insurance Company v. McCarthy, 22 F.2d 241 (C. C. A.); Clark v. Nat. Life & Acct. Ins. Co., 288 S.W. 944. (2) The court should have given Instruction F requested by defendant and should not have given instructions Nos. 2 and 3 for plaintiff. Emory v. New York Life Insurance Company, 257 S.W. 162, and 295 S.W. 571; Carter v. Insurance Company, 204 S.W. 399, 275 Mo. 84; State v. Allen, 276 S.W. 877, 310 Mo. 378; Simpson v. Metropolitan, 265 S.W. 521, also 282 S.W. 454; New York Life Insurance Company v. Hunter, 32 F.2d 173 (C. C. A.); Mutual Life Insurance Co. v. Hurni Packing Co., 260 F. 641 (C. C. A.); New York Life Insurance Company v. McCarthy, 22 F.2d 241 (C. C. A.). (3) Defendant's Exhibit 6 should have been permitted in evidence. Smiley v. John Hancock Mutual Life Insurance Company, 52 S.W.2d 12; Mudd v. John Hancock Life Insurance Company, 39 S.W.2d 450; Clark v. National Life & Acct. Ins. Co., 288 S.W. 944; Kirk v. Metropolitan Life Ins. Co., Supreme Court, Jan. 7, 1935. (4) The court should have sustained defendant's objection to the evidence of Dr. Levin respecting disclosure of diagnosis to deceased. Burgess v. Insurance Co., 230 S.W. 315; Kern v. Legion of Honor, 167 Mo. 471; Northwestern Insurance Co. v. Riggs, 203 U.S. 243, 51 Law Ed. 169; Kirk v. Metropolitan Life Ins. Co. (Supreme Court, No. 33,742, decided Jan. 7, 1935). (5) The question of vexatious delay should have been withdrawn from the jury.

Philip C. Kopitsky, Kopitsky & Kessler and Wm. H. Allen for respondent.

(1) The trial court did not err in refusing to direct a verdict for defendant at the close of the entire case. (a) Plaintiff obviously made a prima facie case, and the burden rested upon the defendant to prove its affirmative defense that the insured had obtained the policy by fraud, as alleged in the answer, that is, by fraudulently making, in her application for the policy, false "representations and statements . . concerning her condition of health," and to prove, as well, that the matters alleged to have been so fraudulently misrepresented by the insured contributed to cause her death. Streeter v. Washington-Fidelity-National Ins. Co., supra, 68 S.W.2d 889, l. c. 893; Scott v. National Life & Acc. Ins. Co. (Mo. App.), 281 S.W. 67; Harris v. Insurance Co., 248 Mo. 304; Burgess v. Insurance Co. (Mo. Sup.), 230 S.W. 315; Dye v. New York Life Ins. Co., 207 Mo.App. 540; Novosel v. Mid-West Ins. Co. (Mo. App.), 276 S.W. 87. (b) And the prima facie case so made by plaintiff could not be overthrown by any amount of formal testimony adduced by defendant not admitted by plaintiff to be true. Burgess v. Pan-American Life Ins. Co., supra, 230 S.W. 315, l. c. 316. Indeed, in view of our "misrepresentation statute" (sec. 5732, R. S. Mo. 1929), plaintiff's prima-facie case so made could not be overthrown except by conclusive admissions on his part against interest, standing wholly unrebutted, uncontradicted and unexplained. Streeter v. Washington-Fidelity-Nat. Ins. Co., 68 S.W.2d 889; Rush v. Met. Life Ins. Co., 63 S.W.2d 453; Bruck v. Ins. Co., 194 Mo.App. 529. (2) The contention of appellant that, because of admissions said to appear in the proofs of death and claimed to be binding on plaintiff, the trial court should have directed a verdict for appellant is wholly without merit. (a) By the terms of the policy--which contained no "sound health provision," that is, one providing that the policy would be effective only in the event it was delivered while the insured was in sound health--the statements made by the insured in her application, alleged by defendant to have been false and to have been fraudulently made by her, were mere representations and not warranties (Abst. 16); and to make even prima-facie proof of the defense alleged it was incumbent upon defendant to adduce substantial evidence of actual fraud on the part of the insured in obtaining the insurance; to show not only that the alleged representations were false, but that they were willfully made by the insured, with knowledge of their falsity, and with a fraudulent or corrupt motive, and to show as well that the matter alleged to have been misrepresented actually contributed to the insured's death. Lieberman v. American Bonding & Casualty Co. (Mo. App.), 244 S.W. 102, 104; Grand Lodge v. Mass. Bonding & Ins. Co. (Mo. Sup.), 25 S.W.2d 783, 787; Roedel v. Insurance Co., 176 Mo.App. 584, 592; Summers v. Met. Life Ins. Co., 90 Mo.App. 691; Bruck v. Insurance Co., 194 Mo.App. 529; Commercial Bank v. American Bonding Co., 194 Mo.App. 224; Aloe v. Mutual Reserve Life Assn., 147 Mo. 561; Kern v. Legion of Honor, 267 Mo. 471; Sec. 5732, R. S. Mo. 1929. (b) Defendant adduced no evidence to sustain its charge of fraud in obtaining the policy. Nowhere in the record does anything appear tending to show that the insured, in her application, willfully and knowingly made any false statement "concerning her condition of health." Consequently, since the execution of the written policy is admitted, as is also the death, and defendant wholly failed to sustain its affirmative plea of fraud, the trial court would have been justified in directing a verdict for plaintiff. Sturdivant Bank v. Houck (Mo. App.), 215 S.W. 758. (c) If, in an action upon a life insurance policy, statements appear in the plaintiff's proofs of death, such as to constitute admissions against his interest, they are always subject to rebuttal and explanation; and if contradicted by other statements in the proofs of death, or if there is any other evidence in the record tending to contradict, explain or relieve against such admissions, the effect to be given thereto is a matter for the jury. Streeter v. Washington-Fidelity-National Ins. Co., supra, 68 S.W.2d 889, 893; Rush v. Met. Life Ins. Co. (Mo. App.), 63 S.W.2d 453, 454; Cope v. Central States Life Ins. Co. (Mo. App.), 56 S.W.2d 602, 605; Johnson v. Mo. Ins. Co. (Mo. App.), 46 S.W.2d 959; Burgess v. Pan-American Life Ins. Co. (Mo. Sup.), 230 S.W. 315; Bruck v. Insurance Co., 194 Mo.App. 529; Ryan v. Met. Life Ins. Co. (Mo. App.), 30 S.W.2d 190, 195; Remfry v. Mutual Life Ins. Co. (Mo. App.), 196 S.W. 775; Salts v. Insurance Co., 140 Mo.App. 142. (d) In the instant case there were no such admissions in the proofs of death. Plaintiff's original proofs of death (Defendant's Exhibits 1 and 2, Abst. 32-36) and the so-called supplemental proofs of death (Defendant's Exhibits 3 and 4, Abst. 37) constitute the only real proofs of death in the case; and none of them contain any admission against interest by plaintiff. On the contrary, while the policy was applied for and issued in April, 1931, it is stated in Defendant's Exhibit 1, of date April 4, 1932, that the first indication of the assured's last illness was "about seven months ago," and in Defendant's Exhibit 3 Dr. Haskell stated that the disease dated back to the latter part of August, 1931. Also the testimony of plaintiff and his lay witnesses was such as to constitute substantial evidence of strong probative force tending to show that plaintiff's fatal disease had its inception long after the issuance of the policy. Obviously the demurrer to the evidence was well ruled below. Rush v. Met. Life Ins. Co., supra, 63 S.W.2d 453; Johnson v. Mo. Ins. Co. (Mo. App.), 46 S.W.2d 959, l. c. 961; Ryan v. Met. Life Ins. Co. (Mo. App.), 30 S.W.2d 190; Shaw v. American Ins. Union (Mo. App.), 33 S.W.2d 1052; Scott v. National Life & Acc. Ins. Co., 281 S.W. 67; Remfry v. Mutual Life Ins. Co. (Mo. App.), 196 S.W. 775; Bruck v. John Hancock Mutual Life Ins. Co., 194 Mo.App. 529. (e) Defendant's Exhibit 5, a statement purporting to have been signed by a Dr. Stafford, was not a part of the proofs of death, and was inadmissible for any purpose. Not only was there no proof of the purported signature thereto, but it was privileged, and was improperly admitted over plaintiff's objection. Rush v. Met. Life Ins. Co., supra, 63 S.W.2d, l. c. 455-456; Holloway v. Kansas City, 184 Mo. 19; Monpleasure v. Amer. Car & Foundry Co. (Mo. App.), 293 S.W. 84. Only the competent or admissible evidence may be considered in determining whether a demurrer to the evidence should have been sustained. Cox v. Higdon, 67 S.W.2d 547, l. c. 549; Riggs v. Met. St. Ry. Co., 216 Mo. 304, 327. And it is certain that, since plaintiff did not file this Exhibit 5 as a part of his proofs of death or adopt it as such, nothing contained therein can constitute any admission on his part against interest. Kirk v. Met. Life Ins. Co., 81 S.W.2d 333, l. c. 340, 341; ...