Mallen v. National Life Association

• Citation: 153 S.W. 1065,168 Mo.App. 503
• Parties: JAMES MALLEN, Administrator, Respondent, v. NATIONAL LIFE ASSOCIATION, Appellant
• Decision Date: 31 December 1912
• Court: Court of Appeals of Kansas

153 S.W. 1065

168 Mo.App. 503

JAMES MALLEN, Administrator, Respondent, v. NATIONAL LIFE ASSOCIATION, Appellant

Court of Appeals of Missouri, Kansas City

December 31, 1912

Appeal from Clinton Circuit Court.--Hon. A. D. Burns, Judge.

REVERSED.

Judgment reversed.

W. H Douglas and E. T. Harris for appellant.

E. J Smith and W. S. Herndon for respondent.

OPINION

ELLISON, J.

--Plaintiff is the administrator of Michael O'Loughlin, deceased, and brought this action on a certificate of life insurance issued by defendant company. The judgment was for the plaintiff.

It seems that the application for insurance with defendant consists of a first and second part. That separate agents of defendant are in charge of these. The first part of the application is under charge of a soliciting agent and is quite general in its statements, amounting to little more than signifying in writing a desire for the insurance, stating the amount and agreeing to pay the premium. The second is in charge of the medical examiner, who takes a statement of applicant's health and requires answers to specific questions as to diseases, attendance of physicians, etc.

Deceased was solicited for insurance by the soliciting agent. He declined, or at least stated he doubted if he could get it for the reason that he was afflicted with the piles. Whereupon the agent said that was of no consequence and made no difference, and when that question was asked him, to answer "no."

Then (date not given) deceased went before the medical examiner, who knew nothing of his fraudulent arrangement with the soliciting agent, and made and signed the second part of the application, in which he stated he did not have any disease of the rectum. This answer was knowingly false, though he warranted it to be true.

The fact was that deceased was badly afflicted with piles, and that in a less time than six months thereafter he died from an operation performed for that affliction.

Plaintiff seeks to avoid deceased's false representation on the ground that defendant's agent was informed of the fact and said it made no difference requesting him to answer "no" when the question was asked him by the medical examiner. It is settled law in this State that if the insurance company's soliciting agent is empowered to take written applications for insurance and is informed as to the facts and yet puts down a falsehood, or directs the applicant to do it, the company is nevertheless liable. [Shotliff v. Modern Woodmen, 100 Mo.App. 138, 73 S.W. 326; Floyd v. Modern Woodmen, 166 Mo.App. 166, 148 S.W. 178.] Since it would not be expected that a liability would attach if the applicant and the agent conspired to defraud the company, the foregoing statement of the law is on the assumption that the applicant acted honestly and in good faith....