Lynch v. Prudential Ins. Co.

• Decision Date: 01 October 1910
• Citation: 150 Mo. App. 461,131 S.W. 145
• Parties: LYNCH v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Missouri Court of Appeals

131 S.W. 145

150 Mo. App. 461

LYNCH v. PRUDENTIAL INS. CO. OF AMERICA.

St. Louis Court of Appeals. Missouri.

October 1, 1910.

Rehearing Denied October 24, 1910.

1. INSURANCE (§ 291)—LIFE INSURANCE— MISREPRESENTATIONS AS DEFENSE.

Under Rev. St. 1899, § 7890 (Ann. St. 1906, p. 3746), providing that no misrepresentation in obtaining a life policy shall be deemed material, or avoid the policy, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become payable, misrepresentation that insured had not been treated by a physician and was in sound health does not avoid the policy, unless his disease was that which afterwards occasioned his death.

2. INSURANCE (§ 668)—LIFE INSURANCE— MISREPRESENTATIONS AS DEFENSE — QUESTION FOR JURY.

By express provision of Rev. St. 1899, § 7890 (Ann. St. 1906, p. 3746), whether the matter misrepresented in obtaining a life policy contributed to the contingency or event on which the policy became payable, so as to avoid it, is for the jury.

3. INSURANCE (§§ 265, 291)—WARRANTIES AND REPRESENTATIONS — ABROGATING DISTINCTION.

Rev. St. 1899, § 7890 (Ann. St. 1906, p. 3746), providing that no misrepresentation in obtaining a life policy shall be deemed material, or avoid the policy, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become payable, abrogates the distinction, obtaining at common law, between warranties and representations in life insurance contracts, and so applies to a warranty in the policy that, unless insured was in sound health when the policy was issued, it should not take effect, as well as to misrepresentations in the application.

4. INSURANCE (§ 250)—LIFE INSURANCE— WILLFUL FRAUD AS DEFENSE.

Though, before the death of insured, willful fraud in obtaining life insurance might be ground for canceling the policy, yet after his death it will, under Rev. St. 1899, § 7890 (Ann. St. 1906, p. 3746), like any other misrepresentation, be available as a defense to an action on the policy, only if it was about a matter which actually contributed to his death.

5. INSURANCE (§ 250)—LIFE INSURANCE— FRAUD AS DEFENSE — BENEFICIARY AIDING AND ABETTING.

The fraud of insured in obtaining life insurance not being such as would, under Rev. St. 1899, § 7890 (Ann. St. 1906, § 3746), be a defense to an action on the policy, it is immaterial that the beneficiary aided and abetted him therein.

6. APPEAL AND ERROR (§ 272)—REVIEW—NECESSITY OF EXCEPTION AT TRIAL—ARGUMENT OF COUNSEL.

To obtain a review on appeal of the question of improper remarks of counsel in argument, an exception must have been preserved at the time. Invoking the matter for the first time in the motion for new trial is unavailing.

Appeal from St. Louis Circuit Court: Hugo Muench, Judge.

Action by Maggie Lynch against the Prudential Insurance Company of America. Judgment for plaintiff. Defendant appeals. Affirmed.

Fordyce, Holliday & White, for appellant James J. O'Donohoe, for respondent.

NORTONI, J.

This is a suit on a policy of life insurance. Plaintiff recovered, and defendant prosecutes the appeal.

Defendant, an old line life insurance company, doing business under the laws of this state, on the 23d day of July, 1907, issued its policy of insurance in the amount of $1,000 on the life of Michael J. Lynch, payable in event of his prior death to his wife, Maggie Lynch, the plaintiff. About six months thereafter, January 29, 1908, the insured died as a result of paresis while insane, and, though proofs of his death were duly made, defendant declined and refused to pay the policy, asserting that it was obtained through misrepresentation and fraud, and, further, that there was a breach of warranty in respect of a condition contained in the policy to the effect that the insurance should not become effective unless the insured was in sound health at the time the policy was issued. This suit having been instituted on the policy, defendant answered thereto by interposing three affirmative defenses, which will be noticed in their order. For its first defense, it is averred that at the time of making application to it for the insurance the insured stated therein that he was in good health, and that he had never been attended by a physician, and that he had never suffered from insanity; that, relying upon the truth of said statements, defendant contracted the insurance involved, which, but for its belief in the truth of the statements aforesaid, would not have been issued. It is averred, too, that each and all of said statements were misrepresentations of fact on the part of the insured, in that he was not then in good health, but was suffering from a disease known as paresis, or softening of the brain; that the insured had been attended by a physician prior to the date of his application, and was then under the care of a physician; and that he had suffered and was then suffering from insanity. It is further averred that the said disease, from which insured represented he had never suffered, and for which he had been attended by physicians, and which at the time rendered his health unsound, directly contributed to and occasioned his death on January 29th thereafter while in the insane asylum. Wherefore it is said the matters so misrepresented by insured to defendant actually contributed to the event on which the policy became due and payable, and that said misrepresentations were therefore material, and rendered the policy void and of no effect. Defendant also tendered all of the premiums which had been paid on the policy.

To sustain the issues on her part, plaintiff introduced the policy in evidence, showed the premiums had been paid, and proved the death of her husband together with the fact that proof thereof had been made in accordance with the terms of the policy. Thereupon, to the end of sustaining its affirmative defense, defendant introduced evidence tending to prove that, at the time and for some three or four weeks prior to the date on which the policy was issued, the insured was suffering from paresis, and had been waited upon by two physicians. But there is no testimony by the physicians themselves as to the nature of his ailment. There is evidence from others, however, tending to prove that at about that time the insured acted queer, indicating a derangement of the mind. It is said that he talked to himself, possessed a wild expression in the eyes, counted spoons and knives, picked up chips in the yard as a little child, etc. In rebuttal, several witnesses for plaintiff gave testimony tending to prove her husband was an assistant to a stone mason, and that he was employed at his trade up to about the time he effected the insurance; that he was in sound health and conducted himself as others do; in other words, that he did not act queer, nor did he count spoons and knives, pick up chips in the yard, nor possess a wild expression in the eyes. It is conceded, however, throughout the case, that about three weeks after the policy was issued, and on August 12, 1907, the insured became insane, and was conveyed to the asylum, where he remained until his death the following January.

The court submitted the matter of the alleged misrepresentations to the jury in instructions, directing that the burden of proof with respect thereto rested upon defendant, and saying substantially that, though the misrepresentations were made, they were immaterial to plaintiff's right of recovery, unless the matter or matters misrepresented actually contributed to the cause of the death of the insured. The instruction given by the court for defendant on this feature of the case was to the same effect, and informed the jury, if it believed from the evidence that at the time of making the application for insurance Michael J. Lynch was not in good health, and had been attended by a physician or physicians, was then under the care and advice of a physician, and was suffering from the disease known as paresis, or softening of the brain, and was then insane, and that said disease, from which insured was then suffering, actually contributed to and was the cause of the death of the insured, then the finding must be for the defendant. There is substantial evidence in the record on either side of this question. Indeed, the record teems with evidence tending to prove that the insured was suffering from paresis, if not actually insane, some two or three weeks before the insurance was effected; but there is an abundance of proof as well to the effect that he was in sound health at the time, and that the disease from which he afterwards died was not present. In these circumstances, of course, the matter was for the jury, and the court very properly refused to direct a verdict for defendant on that score.

It may be conceded the testimony shows conclusively that the insured had been waited upon by two physicians recently before the insurance was effected; but there is no word in the proof tending to show from what malady he then suffered, if any, and for what he was treated, if treated at all, by those physicians. The mere fact that the application contained a false statement with respect to the matter that insured had not been treated by a physician and was in sound health is not sufficient to render the policy void under our statute, unless it appears he was treated for the disease which afterwards occasioned his death. Such a misrepresentation is not a warranty, under our insurance law as modified by the rule of the statute, and is wholly immaterial, unless it was...