Langan v. United States Life Ins. Co.

• Decision Date: 01 April 1938
• Docket Number: No. 34912.,34912.
• Citation: 114 S.W.2d 984
• Parties: LANGAN v. UNITED STATES LIFE INS. CO.
• Court: Missouri Supreme Court

114 S.W.2d 984

LANGAN v. UNITED STATES LIFE INS. CO.

No. 34912.

Supreme Court of Missouri, Division No. 1.

April 1, 1938.

Appeal from St. Louis Circuit Court, Division No. 5; J. W. McAfee, Judge.

Action by Blanche E. Langan against the United States Life Insurance Company on a life policy. From an adverse judgment, defendant appeals.

Cause transferred to the St. Louis Court of Appeals.

Jones, Hocker, Gladney & Grand, of St. Louis, for appellant.

Leo F. Laughren and John P. Griffir both of St. Louis, for respondent.

William C. Michaels, of Kansas City (Alexander & Green, Harry Cole Bates, and Frederick L. Allen, all of New York City, Alfred Hurrell, of Newark, N. J., and Michaels, Blackmar, Newkirk, Eager & Swanson, Kenneth E. Midgley, and Ralph M. Jones, all of Kansas City, of counsel), amici curiae.

Lathrop, Crane, Reynolds, Sawyer & Mersereau, Cyrus Crane, Richard S. Righter, and Dean Wood, all of Kansas City (Louis H. Cooke, of New York City, of counsel), for New York Life Ins. Co. as amicus curiae.

DOUGLAS, Judge.

This is an action involving a life insurance policy in the sum of $10,000 issued by the defendant on the life of plaintiff's husband.

In his application for the policy the insured stated that he was born in 1873, which would make him at that time 53 years of age. After his decease proofs of death disclosed that he was born 2 years before the date stated in his application, and therefore he was 55 instead of 53 years old at that time. The policy contained this provision: "If the age of the Insured has been understated, the amount payable hereunder shall be such as the premium paid would have purchased at the correct age."

Upon receipt of proofs of death the insurance company first learned of the discrepancy in the statement of the insured's age. It offered plaintiff the amount of insurance which the premiums paid would have purchased on the basis of the age of 55, or $9,070.01. This amount was received by plaintiff who then brought suit for $929.99, which is the difference between $10,000, the face amount of the policy, and the amount paid on the policy.

In its answer the insurance company pleaded as an affirmative defense the provision of the policy, reducing the amount payable thereunder in the event of the understatement of the insured's age, and that the amount paid plaintiff was what the premiums would have purchased at the correct age. For further answer defendant stated that, if the misrepresentation statute, section 5732, R.S.Mo.1929, Mo.St.Ann. § 5732, p. 4373, is to be construed as invalidating the provision of the policy that if the age of the insured be understated then the amount payable under said policy shall be such as the premiums paid would have purchased at the insured's correct age, then such statute is unconstitutional and void.

At the close of all the evidence the trial court directed a verdict in plaintiff's favor for the full amount sued for with interest, or $1,061.59, and submitted to the jury the issue of damages and attorney's fees. On that issue the jury found in favor of plaintiff for the sum of $250.

It is apparent that the amount involved does not give this court jurisdiction, and if it has any jurisdiction in this case it must arise from the contention that a constitutional question is invoked within the meaning of section 12, article 6, of the Constitution of Missouri. It becomes our first duty therefore to determine if this court has jurisdiction of the case. Boyd v. Logan Jones Dry Goods Co., 335 Mo. 947, 74 S.W.2d 598.

As one of the grounds stated in its motion for a new trial appellant claims that the trial court erred in construing section 5732, and under such construction the section would be...