Lavelle v. Metropolitan Life Ins. Co.

• Decision Date: 07 March 1922
• Docket Number: No. 17579.,17579.
• Citation: 209 Mo. App. 330,238 S.W. 504
• Parties: LAVELLE v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

238 S.W. 504

209 Mo. App. 330

LAVELLE v. METROPOLITAN LIFE INS. CO.

No. 17579.

St. Louis Court of Appeals. Missouri.

March 7, 1922.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Lizzie Lavelle against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Transferred from Supreme Court (231 S. W. 616). Affirmed.

Fordyce, Holliday & White, of St. Louis, for appellant.

James J. O'Donohoe, of St. Louis, for respondent.

BIGGS, C.

The appeal in this case was taken to the Supreme Court on the ground that a constitutional question was involved. That court, in an opinion reported in 231 S. W. 616, held that there was no valid constitutional question presented by the record, that they were without jurisdiction, and hence the cause was transferred here for determination.

The action is based upon an insurance policy dated June 30, 1909, in the sum of $500, which insured the life of John Lavelle, and named the plaintiff his widow as beneficiary. The insured died on March 18, 1910, and this suit was instituted before a justice of the peace on August 19, 1918, where the plaintiff had judgment. Upon an appeal to the circuit court plaintiff filed an amended petition, which is in conventional form, except that it alleged facts which show that the policy was a contract of the state of Illinois, in that the policy was delivered at Chicago, where the insured lived, and where he died on March 18, 1910; that demand was made upon the defendant to pay the policy on April 1, 1910, at which time defendant disclaimed all liability for reasons other than a failure to furnish proofs of death or to surrender the policy properly receipted. It is then alleged that the policy is an Illinois contract and contains a stipulation as follows:

"Incontestable. This policy constitutes the entire contract between the parties and shall be incontestable, except for nonpayment of premiums, after two years from its date."

It is then averred that—

"At the times in question it was the unwritten, common, and statutory law of the state of Illinois that the incontestable clause in policies inures to the benefit of the beneficiary after the death of insured as much so as it inures to the benefit of the insured during hie lifetime, and that the insurer must assert its claim or defense within the contestable period, whether the insured survives that period or not, either by affirmative action or by defense to a suit brought on the policy within the contestable period; that otherwise every defense is shut off unless excepted in said clause; that among the Illinois cases so holding are the following: Monahan v. Metropolitan Life Ins. Co., 283 Ill. 136, 119 N. E. 68, L. R. A. 1918D, 1196; Weil v. Federal Life Ins. Co., 264 Ill. 425, 106 N. E. 246, Ann. Cas. 1915D, 974; Flanigan v. Federal Life Ins. Co., 231 Ill. 399, 83 N. E. 178; Royal Circle v. Achterrath, 204 III. 549, 68 N. E. 492, 63 L. R. A. 452, 98 Am. St. Rep. 224."

It is further alleged that ail premiums were paid on the policy, and that the defendant failed to assert any claim of non-insurability or other claim within two years from the date of said policy by either affirmative action or defense, or any other manner whatsoever, and is therefore precluded from setting up any defense in this action.

The defendant filed no written pleading, but, after paying to the clerk of the court the sum of $27.56 as a tender of premiums paid on the policy, set up by oral statement and offer of proof the defense that the insured procured the policy in suit by fraudulent misrepresentations, at the time of his application for the policy, of the fact that he was then suffering from and had been previously treated for the disease which subsequently caused his death.

Upon the trial the court excluded all of defendant's testimony to the effect that the deceased for some time prior to his death suffered from a cancer and ultimately died from the effects of that disease, and at the conclusion of the trial peremptorily instructed the jury to return a verdict for the plaintiff, including principal and interest, which the jury did in the sum of $769.75. Judgment being entered on this verdict, defendant, after the customary steps, has duly perfected an appeal.

There are no controverted questions of fact in the case. The record presents a single legal question, viz., whether under the law of Illinois the incontestable clause set forth in the policy bars all defenses, except nonpayment of premiums, after two years from its date, whether the insured survives that period or not. It should be noted that the policy is dated June 30, 1909; that the insured died March 18, 1910; and that suit was instituted on the policy August 19, 1918. The evidence showed that about a week after the death of John Lavelle, plaintiff, the beneficiary, after filing proofs of death, with the defendant, de mended payment of the policy, at which time the defendant refused to pay, assigning as a reason therefor, as testified by the plaintiff, that the insured was sick when the policy was issued.

The insured having died within two years and no action having been taken by the defendant company to cancel the policy within the two-year period from its date, it, is asserted by plaintiff that the stipulation in the contract under the laws of the state of Illinois cuts off every...