Jacobs v. Omaha Life Association

• Decision Date: 07 December 1897
• Parties: Jacobs, Appellant, v. Omaha Life Association
• Court: Missouri Supreme Court

43 S.W. 375

142 Mo. 49

Jacobs, Appellant, v. Omaha Life Association

Supreme Court of Missouri, First Division

December 7, 1897

Appeal from Ray Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed and remanded.

James W. Garner and C. T. Garner for appellant.

(1) To constitute the statements in the application a warranty, the application must be made a part of the policy, and a warranty upon the part of the assured. In the absence of this stipulation in the policy the application is collateral, and statements made therein are merely representations. Ins Co. v. Robertson, 39 Ill. 123; Miller v. Ins Co., 31 Iowa 217; Williams v. Ins. Co., 31 Me 219; Bacon's Ben. Soc. and Life Ins., sec. 194. (2) The defendant is not aided by the fact that such certificate is filed with the petition; it did not thereby become a part of the petition, and could not be considered by the court unless brought to the attention of the court by being introduced in evidence. Pomeroy v. Fullerton, 113 Mo. 440; Morrell v. Trust Co., 46 Mo.App. 236; Vaughn v. Daniels, 98 Mo. 230. (3) Where a forfeiture is relied on to avoid a contract, the conditions must be pleaded and proven, and the burden of proof is on the party who seeks to avail himself of such forfeiture. Glover v. Henderson, 120 Mo. 367; Chadwick v. Triple Alliance, 56 Mo.App. 463. (4) The strong inclination of the courts is to make these questions and answers in insurance applications binding only so far as material to the risk. Ins. Co., 80 Ala. 467; Mouler v. Ins. Co., 111 U.S. 335; Wilkerson v. Ins. Co., 30 Iowa 119; Helly v. Sven, 54 Cal. 156; Life Ass'n v. Gillespie, 110 Pa. St. 84; Ins. Co. v. Barker, 9 Heisk (Tenn.), 606; Bank v. Ins. Co., 88 Cal. 156; Bank v. Ins. Co., 95 U.S. 673. (5) We do not say the illness or injury must be material to the risk, but it must be such as in the judgment of the jury was in contemplation of the insurer. Ins. Co. v. Barker, 9 Heisk (Tenn.), 606; Wilkinson v. Ins. Co., 30 Iowa 119; Ins. Co. v. Roddie, 120 U.S. 184; Brown v. Ins. Co., 65 Mich. 307; Ross v. Bradshaw, 1 Wm. Black, 312; Life Ass'n v. Gillespie, 110 Pa. St. 84; Pudridzky v. Supreme Lodge K. of H., 76 Mich. 428. (6) The defendant's reply also contained an averment if any such error was made in the medical examiner's report that the same was made by the agent of the defendant. If this allegation was true, defendant is estopped from taking advantage of such error. Baker v. Ins. Co., 64 N.Y. 648; Flynn v. Ins. Co., 74 N.Y. 360; Gratton v. Ins. Co., 92 N.Y. 285; McCall v. Ins. Co., 9 W.Va. 237.

Lavelock & Kirkpatrick and F. P. Divelbiss for respondent.

(1) The petition alleges and the answer admits, that the Omaha Life Association is a benevolent corporation doing a life insurance business on the assessment plan. It therefore is not subject to the provisions of sections 5849 and 5850, Revised Statutes, 1889. Whitmore v. Sup. Lodge, 100 Mo. 47; Hanford v. Mass. Ben. Ass'n, 122 Mo. 50; Theobold v. Sup. Lodge, 65 Mo.App. 87; Sparks v. Life Indemnity Co., 61 Mo.App. 109. (2) The statement of assured in his application and examination are by contract made warranties, and if untrue in any respect, no recovery can be had on the policy. Richards on Ins. [2 Ed.], sec. 53, p. 62; 1 Bacon, Ben. Soc. [2 Ed.], sec. 197, p. 329; Loehner v. Ins. Co., 17 Mo. 247; Mers v. Ins. Co., 68 Mo. 127; Whitmore v. Sup. Lodge, 100 Mo. 47; Hanford v. Mass. Ben. Ass'n, 122 Mo. 50; Lama v. Ins. Co., 51 Mo.App. 447; Maddox v. Ins. Co., 56 Mo.App. 343. (3) The statements and representations being warranties, their breach vitiates the certificate or policy of insurance sued on; particularly is this true, when by the terms of the contract, they are all declared to be material to the risk. Richards on Ins. [2 Ed.], sec. 58, p. 66; Jeffries v. Ins. Co., 22 Wall. 47; Ins. Co. v. France, 91 U.S. 510; Day v. Ins.o., 29 Am. Rep. 565; Boyd v. Ins. Co., 90 Tenn. 212; Ins. Co. v. Simpson, 31 S.W. 501. (4) This rule obtains even though the assured may have acted in good faith; especially is this true, where, as in this case, the assured stipulated in his application and examination that if any of the statements or answers contained therein, whether made in good faith or otherwise, were in any respect untrue; then the certificate or policy should be null and void. May on Ins. [2 Ed.], sec. 300, p. 397-398; Richards on Ins. [2 Ed.], sec. 55, p. 62; 1 Beach on Ins. sec. 423; p. 401; 1 Bacon on Ben. Soc. [2 Ed.] sec. 197, p. 329; Davenport v. Ins. Co., 6 Cush. 341; Miles v. Ins. Co., 3 Gray, 580; Baumgart v. Mod. Wood, 55 N.W. 713; Cozenore v. Ins. Co., 6 C. B. (U.S.) 437. (5) The replication of the plaintiff admits that the answer of Robertson L. Jacobs relating to the date when his leg was broken, together with the other answers dependent thereon, were untrue. Under this admission of plaintiff, is it possible to escape a forfeiture? He declared at the close of his medical examination that he had read over his answers and they were written as answered by him. Fraud, misrepresentation, imposition or deceit may excuse one from knowing the contents of a paper he signs, but negligence, never. Besides, there is no pretense of fraud or imposition. 1 Beach on Ins., sec. 416, p. 394; Snider v. Express Co., 63 Mo. 383; Palmer v. Ins. Co., 31 Mo.App. 472; Mensing v. Ins. Co., 36 Mo.App. 607; School Dist. v. Ins. Co., 61 Mo.App. 600; Ins. Co. v. Fletcher, 117 U.S. 519; Wilkens v. Mut. Life Ass'n, 54 Hun. 294.

OPINION

Macfarlane, J.

This is a suit on a certificate or policy of insurance.

The petition, in substance, charges that plaintiff is the widow of Robertson L. Jacobs, deceased, and defendant is a benevolent corporation doing business under the laws of Nebraska. That on the first day of June, 1894, in consideration of the payment of $ 26.50 and the payment thereafter of $ 26.50 quarterly for the period of fifteen years, defendant executed and delivered to said Robertson L. Jacobs its five beneficiary certificates, each for the sum of $ 1,000, the same constituting a policy of insurance in said association whereby it promised to pay plaintiff the said sum of $ 5,000 within ninety days after proof of the death of the said Robertson L. Jacobs.

The petition then charges the death of said Robertson on the twenty-ninth day of June, 1896, and proof thereof; that the said insured and plaintiff kept and performed all the conditions contained in said policy and the by-laws of said association, yet defendant neglected and refused to pay said sum. Judgment is demanded for the amount due.

The answer of defendant admits that it is a benevolent corporation under the laws of Nebraska; admits that it issued the certificate of membership; admits the death of Jacobs and due proof thereof. The answer then avers that it is a benevolent society and sets out in full article 3 of its charter which shows the general nature of the business to be that of giving aid to the families of deceased members. It avers that under the laws of Nebraska it is authorized to transact the business of a fraternity on the assessment plan and is, and at the date of the policy was, authorized to transact business within this State on the assessment plan. The answer then charges that admission of said Jacobs to membership was in consideration of statements, declarations, and warranties contained in his application and medical examination. That by the said application, which is made a part of the contract, the applicant stipulated and warranted that the answers and explanations given to questions propounded to him were full, complete, and true, and that each and every such statement and answer was material to the risk. That the statements were declared to be the exclusive and only basis of the contract, and if any misrepresentation, or fraudulent, or untrue answers were made the agreement and policy of insurance should be void. The answer further charges that in said medical examination the following question was asked: "State particulars of any illness, constitutional disease, or injury you have had, giving date, duration, and remaining effects, if any?" To which question he made the following answer: "None, except broken leg, March, '83," which answer was untrue; the said injury having occurred in March, 1893; and the following further questions were asked: "When did you last consult a physician?" to which he answered: "When leg was broken." "For what did you consult him?" to which he answered "Above." "Have you consulted or obtained the advice of any medical man within the last ten years?" to which he answered: "No;" which last answer was untrue. By reason of these false answers defendant charges that the certificate is null and void.

The reply to the answer denies each allegation of new matter contained therein, and states specially that: "The application referred to in said answer was not written by the deceased, Robertson L. Jacobs, but by the agent of the defendant, and that the allegation therein, that deceased's leg was broken in March, 1883, was a clerical mistake made by the agent of defendant in making out and writing the deceased's application for insurance. Plaintiff states that the same was not material and did not affect the merits of the risk, or the condition of defendant's soundness of body or condition of health. And plaintiff denies that any of the allegations contained in said answer of defendant contain any material or meritorious matters of legal defense to the just and meritorious cause of action contained in plaintiff's petition in this cause."

When the case was called for trial the bill of exceptions shows the following proceedings:

"Defendant in this cause now moves the court for a judgment on the pleadings as shown (admitted) by the replication...