Kirk v. Metropolitan Life Ins. Co.

• Citation: 81 S.W.2d 333,336 Mo. 765
• Parties: Harry A. Kirk, Administrator, v. Metropolitan Life Insurance Company, Appellant
• Decision Date: 30 March 1935
• Court: United States State Supreme Court of Missouri

81 S.W.2d 333

336 Mo. 765

Harry A. Kirk, Administrator, v. Metropolitan Life Insurance Company, Appellant

Supreme Court of Missouri

March 30, 1935

Rehearing Denied March 5, 1935.

Motion to Transfer to Banc Denied March 30, 1935.

Appeal from Grundy Circuit Court; Hon. Ira D. Beals, Judge.

Reversed.

William C. Michaels for appellant; Landis & Landis, Meservey Michaels, Blackmar, Newkirk & Eager and Leroy A. Lincoln of counsel.

(1) It is the settled law in this State that the Misrepresentation Statute (Sec. 5732) makes no distinction between innocent and fraudulent representations, and the Court of Appeals was in error in holding to the contrary and in stating that defendant was required to prove that insured knew she had tuberculosis at the time the policy was issued and dated. Kern v. Legion of Honor, 167 Mo. 487; Burgess v Pan American Life Ins. Co., 230 S.W. 322; Pacific Mutual Life Ins. Co. v. Glaser, 245 Mo. 377; Carter v. Met. Life Ins. Co., 275 Mo. 84; State ex rel. Met. Life Ins. Co. v. Allen, 310 Mo. 378; Ryan v. National Council, 257 S.W. 1071; Bruck v. John Hancock Mutual Life Ins. Co., 194 Mo.App. 529; Mack v. Western & Southern Life Ins. Co., 53 S.W.2d 1109; Clark v. National Ins. Co., 288 S.W. 944; Hammers v. National Life & Accident Ins. Co., 292 S.W. 1064; Hodges v. American Natl. Ins. Co., 6 S.W.2d 72; Gallop v. Royal Neighbors, 167 Mo.App. 85, 150 S.W. 1118. (2) The proofs were properly admitted in evidence. They were the only proofs ever furnished to defendant. They were adopted by plaintiff, and the statements and admissions contained therein were binding on plaintiff the same as though he himself had originally submitted the proofs. Strang v. Prudential Ins. Co., 263 N.Y. 71, 188 N.E. 161; 82 Ins. L. Journal 851; Fey et al. v. I. O. O. F. Mutual Life Ins. Co., 120 Wis. 358, 98 N.W. 206; Cope v. Central States Life Ins. Co., 56 S.W.2d 602. (3) The proofs showed that Belvia Kirk, the insured, was not in sound health on the date of the policy, July 23, 1923, and this showing was in no way rebutted by any evidence and, therefore, the admissions and statements in the proofs became conclusive on plaintiff and the court should have sustained defendant's demurrer to all the evidence at the close of the case and directed a verdict for the defendant. Mudd v. John Hancock Mutual Life Ins. Co., 39 S.W.2d 450; Smiley v. John Hancock Mutual Life Ins. Co., 52 S.W.2d 15; Grohmann v. Maccabees, 237 S.W. 875; Commonwealth L. Ins. Co. v. Anglin, 65 S.W.2d 239; Aetna L. Ins. Co. v. Kelley, 70 F.2d 589.

Geo. E. Woodruff for respondent.

(1) There will be no reversal of a case where the verdict on the entire record is for the right party. (a) The judgment in the case of the Metropolitan Life Ins. Co. v. Kirk, the equity case, is res adjudicata. Kirk v. Met. L. Ins. Co., 38 S.W.2d 521; Williams v. City of Hayti, 184 S.W. 470; Stewart v. O'Neil, 237 F. 897, 150 C. C. A. 547; Morehead v. Cummins, 230 S.W. 656, 207 Mo.App. 654; State ex rel. v. Fidelity Co., 217 Mo. 1078, 298 S.W. 83; R. C. L., secs. 438, 450. (b) There was no deposit in the instant case of the premiums paid and no effective tender. (c) Bosanko, the alter ego of defendant company, waived the provisions of the policy relative to good health and disease. Madsen v. Prudential Ins. Co., 185 S.W. 1168; Jones v. Prudential Ins. Co., 155 S.W. 1106, 173 Mo.App. 1; Clark v. Ins. Co., 58 S.W.2d 486; Winn v. Ins. Co., 83 Mo.App. 123; Rainey v. Met. L. Ins. Co., 58 S.W.2d 790; Macan v. Missouri M. Assn., 60 S.W.2d 402. (2) Evidence was admissible on the condition of insured's health of July 23, 1923. The proofs of loss introduced by defendant were not binding on plaintiff nor admissible against him. The court did not err in modifying defendant's instruction. Rush v. Metro. L. Ins. Co., 63 S.W.2d 453; King v. Metro. L. Ins. Co., 211 S.W. 723; Bathe v. Ins. Co., 152 Mo.App. 87. (3) The proofs of loss were not admissible against plaintiff and if admissible were prima facie evidence only. Manning v. Prudential Ins. Co., 212 Mo.App. 124, 213 S.W. 897. (4) Despite the proofs of loss, plaintiff's evidence made a case for the jury. Rush v. Met. Life Ins. Co., supra; Bruck v. Ins. Co., 194 Mo.App. 529, 185 S.W. 757; Keller v. Ins. Co., 198 Mo. 440; Bathe v. Ins. Co., 152 Mo.App. 87; Smiley v. Ins. Co., 52 S.W.2d 15. (5) Defendant is not entitled to assert error as to any matter in the trial affecting the issues of the health of the insured for the reason that it did not tender in court the amount of premium collected. Caldwell v. Ins. Co., 245 S.W. 602; Shaw v. Ins. Co., 9 S.W.2d 685; Pauley v. Business Men's Assn., 261 S.W. 340; Drucher v. Western Indemnity Co., 223 S.W. 989; Knight v. Ins. Co., 49 S.W.2d 682; Kirk v. Ins. Co., 38 S.W.2d 519; Mannion v. Ins. Co., 273 S.W. 201; Lilly v. Ins. Co., 44 S.W.2d 656.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Action at law, in three counts, upon three industrial insurance policies, issued by defendant on the life of Belvia Kirk, now deceased. Verdict and judgment for plaintiff on each count, aggregating $ 816. An appeal was granted defendant to the Kansas City Court of Appeals, where the judgment was affirmed. [Kirk v. Met. Life Ins. Co., 72 S.W.2d 185.] That court, deeming its opinion in conflict with that of the St. Louis Court of Appeals in Gallop v. Royal Neighbors of America, 167 Mo.App. 85, 150 S.W. 1118, certified the cause to this court; hence our jurisdiction. Both parties have filed in this court additional briefs, which to some extent modify certain contentions made in the Court of Appeals, especially on the part of appellant. Except as to contentions made in the Court of Appeals and now abandoned by appellant, we have considered the briefs filed in both courts, as counsel for both parties requested. In this court appellant has made a statement of the facts which respondent admits to be in the main correct, and which, with the elision of references to pages of the abstract and matter in the nature of comments, we quote, without enclosing in quotation marks, as follows:

The person named in the policies as the "insured" is Belvia Kirk. Her age was twenty-three. It appears that she signed three applications for the three policies and the pleadings mention such applications and certain alleged representations made therein, but the applications were not offered in evidence and their contents are not before the court. It also appears from the record that there was no medical examination and, so far as the record shows, there was no recommendation of the risk. The applications were taken July 7, 1923. On those applications, signed by the insured, three policies were issued. Each of the policies bears the date of July 23, 1923. Belvia Kirk died December 11, 1923, of tuberculosis, which was less than five months after the date of the policies.

Each of the policies contained as its first "condition" the following clause known in the books as the "sound health" provision or condition:

"No obligation shall be assumed by the Company prior to the date hereof nor unless on said date the insured is alive and in sound health. Should the proposed insured not be alive or not be in sound health on the date hereof, any amount paid to the Company as premiums hereon shall be returned."

Another "condition" in each of the policies concerned proofs of death:

"Proofs of death under this policy shall be made upon blanks to be furnished by the company and shall contain answers to each question propounded to the claimant, physicians and other persons, and shall contain the record, evidence and verdict of the coroner's inquest, if any be held. All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against the Company."

The opening part of each of the policies reads:

"METROPOLITAN LIFE INSURANCE COMPANY. In Consideration . . . doth hereby agree, subject to the conditions below and on page 2 hereof, each of which is hereby made a condition of this contract and contracted by the insured and every person entitled to claim hereunder to be a part hereof, to pay upon receipt of proofs of the death of the insured made in the manner, to the extent and upon the blanks required herein . . . the amount stipulated . . . to the executor or administrator of the insured, unless payment be made under the provisions of the next succeeding paragraph."

"The next succeeding paragraph" on the face of each policy is what is known as the "facility of payment" clause. It provides:

"The Company may make any payment or grant any nonforfeiture privilege provided herein to the insured, husband or wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial; and the production of a receipt signed by either of said persons, or of other proof of such payment or grant of such privilege to either of them, shall be conclusive evidence that all claims under this policy have been satisfied."

Plaintiff offered no evidence in chief. After the jury was sworn plaintiff said he would "rest our case on the record and admission in the pleadings." Whereupon the defendant filed its demurrer and asked the court to direct a verdict for the defendant. This was argued and overruled. Defendant thereupon offered the three policies in evidence, the deposition of one Wells, showing tender of premiums to Mrs. Mattie C. Kirk and Mrs. McDonald (mother-in-law and sister-in-law of insured and who had paid the premiums and had made claims on the policies). The records of the circuit court showing deposit with the clerk of the...