Hurt v. New York Life Ins. Co.

• Decision Date: 02 November 1931
• Docket Number: No. 400.,400.
• Citation: 53 F.2d 453
• Parties: HURT et al. v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — Tenth Circuit

53 F.2d 453 (1931)

HURT et al. v. NEW YORK LIFE INS. CO.

No. 400.

Circuit Court of Appeals, Tenth Circuit.

November 2, 1931.

Arnold C. Todd and Austin M. Cowan, both of Wichita, Kan., for appellants.

Wm. C. Michaels, of Kansas City, Mo., and Richard E. Bird, of Wichita, Kan. (Michaels, Blackmar, Newkirk & Eager, of Kansas City, Mo., and Louis H. Cooke, of New York City, on the brief), for appellee.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

Counsel for plaintiffs contend, in a petition for rehearing, that section 40-330, Kansas Rev. St. 1923, was copied from section 6142, Missouri Rev. St. 1919, and that in our former opinion we erred in not following the construction placed on such statutes by the Missouri and Kansas decisions.

The provisions of the two statutes are substantially the same. We assume therefore that the Kansas statute was taken from Missouri, and that the Kansas legislature, when it passed section 40-330, supra, adopted along with the Missouri statute the judicial construction which had then been placed upon it.

The Supreme Court of the United States, in Northwestern Nat. Life Ins. Co. v. Riggs, 203 U. S. 243, 27 S. Ct. 126, 128, 51 L. Ed. 168, 7 Ann. Cas. 1104, decided December 3, 1906, after reviewing the decisions of the highest court of Missouri interpreting section 6142, supra, said:

"We take it, then, that the statute, if enforced, cuts off any defense by a life insurance company, based upon false and fraudulent statements in the application, unless the matter misrepresented actually contributed to the death of the insured."

The question as to whether a condition precedent was within the provisions of the statute was not considered or decided. The Missouri cases, decided before the enactment of the Kansas statute in 1907, held that innocent misrepresentations, fraudulent misrepresentations and warranties were within the terms of the statute; but did not pass upon the question of whether the word "misrepresentations" included condition precedent. Schuermann v. Insurance Co., 165 Mo. 641, 65 S. W. 723; Kern v. Supreme Council American Legion of Honor, 167 Mo. 471, 67 S. W. 252; Christian v. Insurance Co., 143 Mo. 460, 45 S. W. 268.

In Salts v. Prudential Ins. Co., 140 Mo. App. 142, 120 S. W. 714, 717, decided June 8, 1909, the St. Louis Court of Appeals said:

"`A condition precedent calls for the performance of some act or the happening of some event, after the terms of the contract have been agreed upon, before the contract shall take effect; that is, the contract is made in form, but does not become operative as a contract until some future act is performed or some subsequent event occurs.' 4 Ency. Law, p. 627; Redman v. Ins. Co., 49 Wis. 439, 4 N. W. 591, 595. This is the technical definition, but in truth the terms `warranty' and `condition precedent' are used interchangeably in insurance law."

This is the first case in Missouri dealing squarely with this question. It was decided subsequently to the passage of the Kansas statute and hence is not controlling here.

In Becker v. Kansas Casualty & Surety Co., 105 Kan. 99, 181 P. 549, cited by counsel for plaintiffs, the court held that untrue answers to questions in the application for insurance concerning the physical condition of the insured were within the misrepresentation ...