Keller v. Home Life Ins. Co.

• Decision Date: 03 July 1906
• Citation: 95 S.W. 903,198 Mo. 440
• Parties: KELLER v. HOME LIFE INS. CO.
• Court: Missouri Supreme Court

95 S.W. 903

198 Mo. 440

KELLER v. HOME LIFE INS. CO.

Supreme Court of Missouri, Division No. 2.

July 3, 1906.

1. INSURANCE—LIFE INSURANCE—AVOIDANCE OF POLICY FOR MISREPRESENTATION—STATUTES —APPLICABILITY.

Rev. St. 1899, § 7890, providing that no misrepresentation made in obtaining a policy of insurance on the life of any person shall be deemed material or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it is so contributed shall be for the jury, applies to an action on a policy issued by an old line company on the life of a citizen of the state, and prevents the insurer from avoiding the policy by showing the falsity of answers to immaterial questions in the application for insurance.

2. APPEAL—ESTOPPEL TO ALLEGE ERROR.

Where an insurance company, when sued on a life policy, requested and obtained an instruction predicated on the provisions of Rev. St. 1899, § 7890, providing that no misrepresentation made in obtaining a life policy shall be material unless the matter misrepresented shall have actually contributed to the contingency on which the policy is to become payable, the company cannot challenge the applicability of the section to the case.

3. INSURANCE—WARRANTIES—STATUTES.

Declarations to a medical examiner, made by an applicant for insurance and contained in an application for insurance are not warranties, notwithstanding the provisions of the policy making such representations warranties, since Rev. St. 1899, § 7890, provides that no misrepresentation shall be deemed material unless the matter misrepresented shall have actually contributed to the contingency on which the policy is to become payable.

4. CONSTITUTIONAL LAW—EQUAL PROTECTION OF THE LAWS—STATUTES—VALIDITY.

Rev. St. 1899, § 8012, providing that in any case against any insurance company for the amount of a loss under a policy, where it appears that the company vexatiously refused to pay the loss, the court or jury may, in addition to the amount thereof, allow plaintiff damages not exceeding 10 per cent. of the loss and a reasonable attorney's fee, is not unconstitutional.

5. INSURANCE—DELAY IN PAYMENT—DAMAGES —QUESTION FOR JURY.

In an action on a life policy, evidence examined, and held to warrant the court in submitting the question of vexatious delay in the payment of the claim sued on to the jury and, on it finding a vexatious delay, to authorize the imposition of damages and attorney's fee expressly authorized by Rev. St. 1899, § 8012.

6. SAME — MISREPRESENTATIONS — EFFECT — QUESTION FOR JURY.

In an action on a life policy, evidence examined, and held, that the question whether the misrepresentations made by insured in procuring the policy actually contributed to the contingency on which the policy was to become payable, within Rev. St. 1899, § 7890, providing that no misrepresentation in procuring a policy shall render the same void unless the misrepresentation shall have contributed to the contingency on which the policy is to become payable, was for the jury.

Appeal from Circuit Court, Cape Girardeau County.

Action by Mary M. Kellar against the Home Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This cause is brought to this court by appeal on the part of the defendant from a judgment of the Cape Girardeau county circuit court in favor of the plaintiff for the sum of $2,475. This was a suit by plaintiff, who is the widow of August W. Keller, deceased, against the defendant, an insurance company of New York, an old line company, upon a policy dated October 30, 1899, for $2,000. The sufficiency of the petition stating the cause of action is not challenged, but it is conceded by appellant that the petition is in the usual form in cases of this character. The main contentions in this cause arise upon the defenses set up in the answer and the evidence introduced upon such defenses, and the instructions given by the court applicable to such evidence; therefore, to fully appreciate this controversy it is important to state at least the substance of the defenses interposed by the answer. The answer contained three counts. The first count was an admission of the character and business of defendant as charged in the petition, coupled with a general denial. The second count set out at length the facts leading up to the issuance of the policy, set out fully the application of assured to defendant upon which the policy was issued, also set out fully the declarations of Keller to the company's medical examiner, and charged that by the terms of the policy the said written application of assured, together with his answers and his declarations to the medical examiner of defendant, were a part of the policy and constituted the basis upon which said policy was issued. The count of the answer charged that assured's answers to questions propounded to him in these two papers were replete with false statements and misrepresentations concerning the condition of his health, his history, his habits, and his treatment by other physicians, etc., and charged that assured did not make these misrepresentations innocently, but knowingly, and with the specific intent to deceive the company; that they did deceive the company into issuing the policy in suit; and that but for said false representations and answers said policy would never have been issued. This count of the answer also charged that in the said application, so made, as well as in his said declarations to the medical examiner, Keller, over his own signature, expressly warranted in his own behalf and on behalf of all persons who might claim any interest in said policy, that all of his said answers to said questions therein were true, full, and complete. The second count further charged that these said misrepresentations, false and fraudulent in character, were warranties and were about matters which contributed directly to the death of Keller; that the first annual premium had been tendered in return to plaintiff before suit was brought, and it was accompanied with a deposit in court of the premium and the accumulated interest on it. This count specifically charged that Keller was a consumptive long before he applied for this insurance; that he had been treated for it, was advised that he had it, and that he died with that disease. The third count in the answer charged that the statute, which provides for a 10 per cent. penalty for a vexatious defense to a suit upon an insurance policy, was void and of no effect as contravening the fourteenth amendment of the Constitution of the United States, and section 30, art. 2, of the Constitution of Missouri. The replication was a general denial.

The testimony upon the trial of this cause on the part of the plaintiff tended to substantially prove the following state of facts: That August W. Keller was a farmer about 38 years of age, owning and operating a large farm, of which about 125 acres were cleared, and doing the greater part of the work himself. In the fall of 1899 he was hunted up by Baird Paletee, the agent of the defendant insurance company, and prevailed upon to take out a policy of insurance on his life. On the 18th day of September, 1899, he made application on a blank furnished by the agent, and on the same day was examined by Dr. A. L. Franklin, the medical examiner for the company. In connection with the medical examination he was required to sign a paper entitled "Declarations Made to the Medical Examiner of the Home Life Insurance Company." The medical report being favorable, a policy for $2,000, payable to Mary M. Keller, wife of the insured, was issued and delivered October 30, 1899. During the same fall, after the date of his application for insurance, Keller put in 40 or 45 acres of wheat, doing most of the work himself, and attended to all of his farming operations. In December he took pneumonia, and from this on continued in bad health until he died in the following June of quick or galloping consumption, an after effect of the pneumonia. Dr. A. L. Franklin, who was still the medical examiner of the defendant, attended him while he had pneumonia, and he treated him for some time thereafter, and in testifying in this cause attributes the quick consumption to this disease. The report of Dr. Franklin, the medical examiner of the defendant, was introduced in evidence, in which the following questions and answers appeared: "How long have you known him? Seven years. Does his facial aspect indicate health and vigor? Yes. Is there anything unfavorable in his general appearance? No. Figure—state whether it is erect or stooping? Erect. Is the respiratory murmur clear and distinct over the lungs? Yes. Do auscultation and percussion show an entire absence of any signs of past or present disease of respiratory organs? Yes. State the rate and other qualities of the pulse? Seventy-two, full and regular. Is it irregular, or intermittent? No. Are the sounds and rhythm of the heart regular and normal? Yes. Is there any evidence of undue strength or weakness of the heart action? No. Are there any indications of disease of the heart or blood vessels? No. Is the apex beat in the usual place? Yes. Is there any evidence of derangement of function of the stomach or other abdominal organs? No." It was further shown in evidence that after the death of plaintiff's husband the defendant, without awaiting formal proof of death or any action on the part of beneficiary, sent a messenger down into the country to Mrs. Keller's home with directions to tender her $79.72, the amount of the premium paid by her husband, and to deliver to her a letter from the company denying liability under the policy. The plaintiff, the widow of the deceased, August W. Keller, refused this tender. The claim for this insurance was placed in the hands of Wilson Cramer, an attorney at law, and he notified the...