Lynch v. Prudential Insurance Co. of America
| Decision Date | 01 October 1910 |
| Citation | 131 S.W. 145,150 Mo.App. 461 |
| Parties | MAGGIE LYNCH, Respondent, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
AFFIRMED.
Judgment affirmed.
Fordyce Holliday & White for appellant.
(1) The judgment should be reversed, as the verdict was against the great weight of the evidence and for the wrong party, and the issues were not submitted to the jury by proper instructions. Morelock v. Railroad, 112 Mo.App. 640; Schmidt v. Rankin, 193 Mo. 254. (2) The court erred in refusing defendant's instruction number 3 and in excluding from the case the defense that there had been a breach of a condition precedent and that this policy had never taken effect. 25 Cyc. Life Insurance, p. 810; Thompson v Travelers Ins. Co., 13 N.D. 444, 101 N.W. 900; Cable v. Life Ins. Co., 111 F. 19; Plumb v. Life Ins Co., 108 Mich. 94; Laughlin v. Gerardi, 67 Mo.App. 380; May v. Crawford, 150 Mo. 528. (3) The court erred in excluding testimony tending to support the defense that this policy was obtained by plaintiff's fraud, and in refusing defendant's instruction number 4 submitting this defense to the jury. Scheurman v. Life Ins. Co., 165 Mo. 641; Summers v. Metropolitan, 90 Mo.App. 691; Keller v. Home Life Ins. Co., 198 Mo. 440; Life Ins. Co. v. Minch, 53 N.Y. 144; March v. Life Ins. Co., 186 Pa. 629; Scanlan v. Gulick, 199 Mo. 449. (4) The court erred in refusing to permit Dr. Herman to state how long in his opinion Michael J. Lynch had been suffering from paresis before the doctor first saw him on August 12, 1907. Keller v. Life Ins. Co., 95 Mo.App. 627; Modern Woodmen v. Angle, 127 Mo.App. 94; Davey v. Aetna Life, 38 F. Rep. 650; Aetna Co. v. Ward, 140 U.S. 76. (5) The court should have granted defendant a new trial on account of the repeated use of improper and inflammatory language by counsel for plaintiff in his address to the jury. Wilburn v. Railroad, 48 Mo.App. 224; Evans v. Town of Trenton, 112 Mo. 390; Beck v. Railroad, 129 Mo.App. 7.
James J. O'Donohoe for respondent.
(1) The introduction in evidence of the policy and proof of the death of the insured made plaintiff's prima facie case. Mulroy v. Knights of Honor, 28 Mo.App. 463; Stewart v. Legion of Honor, 36 Mo.App. 319; Force v. Knights of Honor, 41 Mo.App. 106; Chadwick v. Triple Alliance, 56 Mo.App. 474; Gruwell v. Knights and Ladies of Security, 126 Mo.App. 496; Dazell v. Fidelity & Casualty Co., 176 Mo. 253. There is no issue of fraud or misrepresentation in this case, for there is neither pleading nor proof "that the policy would not have been issued had the company known the real state of facts" and hence an instruction directing a verdict for plaintiff would have been properly given. Christian v. Ins. Co., 143 Mo. 460; Summers v. Ins. Co., 90 Mo.App. 691. These issues are not in this case for the further reason that defendant has failed to attach to the policy or indorse thereon the substance of the application upon which the policy was issued. Sec. 7929, R. S. 1899. (2) The distinction between warranties and representations has been abolished in this state. And defendant's instructions 3 and 4 were properly refused. Sec. 7890 and 7936, R. S. 1899; Ashford v. Ins. Co., 98 Mo.App. 505; Jacobs v. Life Assn., 146 Mo. 523; Aloe v. Life Assn., 164 Mo. 675; Sheurmann v. Ins. Co., 165 Mo. 641; Kern v. Legion of Honor, 167 Mo. 471; Jenkins v. Ins. Co., 171 Mo. 383; Williams v. Ins. Co., 189 Mo. 70; Keller v. Ins. Co., 198 Mo. 440. The provision in the policy that the same would not take effect unless delivered while Lynch was in good health contravenes sections 7890 and 7936, R. S. 1899, and is void. The condition in the application is an attempt to repeal by application these sections and as such is idle and void. Burns v. Ins. Co., 124 S.W. 539; Williams v. Ins. Co., 73 Mo.App. 612; Ins. Co. v. Coleman, 58 Ga. 251; Ins. Co. v. Leslie, 47 Ohio St. 409; King Brick Mfg. Co. v. Ins. Co., 164 Mass. 291; Emery v. Ins. Co., 52 Me. 322; Burridge v. Ins. Co., 211 Mo. 187. (3) Dr. Hermann as a witness was incompetent for any purpose. Obermeyer v. Mfg. Co., 120 Mo.App. 59; Glasgow v. Railroad, 191 Mo. 347; Smart v. Kansas City, 208 Mo. 162; Beave v. Railroad, 212 Mo. 331. The hypothetical questions propounded to Dr. Hermann were improper for they were not supported by the evidence and called for conclusions which were for the jury and not the doctor to draw. Taylor v. Railroad, 185 Mo. 239. (4) The remarks of plaintiff's attorney to the jury are within the record and the limits of legitimate argument. Besides, they are not open to review since no exception was taken. Objection cannot be made for the first time in a motion for a new trial. Kennedy v. Holladay, 25 Mo.App. 503; Colburn & Hamilton v. Brunswick Flour Co., 49 Mo.App. 419; Sampson v. Railroad, 57 Mo.App. 312; Rose v. McCook, 70 Mo.App. 183; Doyle v. Trust Co., 140 Mo. 1; Casey v. Gill, 154 Mo. 181; State v. Gartrell, 171 Mo. 489.
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 $ 1000 on the life of Michael J. Lynch, payable in the 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; 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 queerly, 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 queerly nor did he count spoons and knives, pick up chips in the yard or 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...
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