Mattero v. The Central Life Insurance Co.
| Citation | 215 S.W. 750,202 Mo.App. 293 |
| Parties | MARIA CARUSO MATTERO, Respondent, v. THE CENTRAL LIFE INSURANCE CO., Appellant |
| Decision Date | 04 November 1919 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of the City of St. Louis.--Hon Charles B. Davis, Judge.
Judgment reversed and cause remanded.
Jones Hocker, Sullivan & Angert for appellant.
(1) The law did not require a copy of the application to accompany this policy. R. S. 1909, article 2 (old-line statute); Id. article 3 (assessment statute); Id., article 4 (); Id., article 5 (industrial and prudential); Id., article 9 (fraternal and beneficial); Whitemore v. Supreme Lodge, 100 Mo. 47; Hanford v. Benev. Assn., 122 Mo. 56; Jacobs v. Life Assn., 142 Mo. 57; Toomey v. Supreme Lodge, 147 Mo. 136; Haynie v. Knights Templars, 139 Mo. 58; Bankers' Life v. Chorn, 186 S.W. (Mo. Sup.) 683; Insurance Co. v. Rosenheim, 56 Mo.App. 34; McDermott v. Modern Woodmen, 97 Mo.App. 646. To construe and apply section 6978 as it was construed and applied by the trial court, is to render the statute void under section 28, article 4, Constitution of Missouri. (2) The court had nothing before it, in ruling on the motion, to show that a copy of the application was not in fact attached to the policy. Exhibits are not a part of the pleadings. Kearney v. Woodson, 4 Mo. 114; Hadwen v. Home Mut. Ins. Co., 13 Mo. 473; Hall v. Harrison, 21 Mo. 227; Chambers v. Carthel, 35 Mo. 374; Deitz v. Corwin, 35 Mo. 376; Curry v. Lackey, 35 Mo. 389; Baker v. Berry, 37 Mo. 306; Dyer v. Krayer, 37 Mo. 603; Bowling v. McFarland, 38 Mo. 465; Kerr v. Insurance Co., 40 Mo. 19; Peake v. Bell, 65 Mo. 224; Hogan v. Christy, 3 Mo.App. 566; Vaughan v. Daniels, 98 Mo. 230; Hubbard v. Slavens, 218 Mo. 622; Hanks v. Hanks, 218 Mo. 678; Pullis v. Sommerville, 218 Mo. 649; Robinson v. Levy, 217 Mo. 510; McManus v. Butler, 213 S.W. 447. (3) Even if Revised Statutes 1909, section 6978, applied, it would not prevent a defense, nor a crossbill based on fraudulent substitution in the medical examination. Carter v. Insurance Co., 204 S.W. 399; Insurance Co. v. Hertiky, 138 Ky. 359; s. c., 128 S.W. 91; Insurance Co. v. Pate, 97 S.E. 874; Wilkins v. Insurance Co., 97 S.E. 879; Hews v. Life Assur. Soc., 143 F. 850; Insurance Co. v. Gee, 171 Ala. 435; s. c., 55 So. 166. (4) Damages and attorney's fees should not have been allowed. Shoe Co. v. Phoenix Co., 210 S.W. 37.
Charles A. Lich for respondent.
(1) The law did require a copy of the application to accompany this policy. Schuler v. Metropolitan Life Ins. Co., 191 Mo.App. 52; Hicks v. Metropolitan Life Ins. Co., 196 Mo.App. 162; Coscarello v. Insurance Co., 175 Mo.App. 130. (2) The trial court properly struck out defendant's cross-bill. 16 Cyc. 144; Stegmann v. Weeks, 214 S.W. 134, and cases above cited. (3) The court properly struck out the parts of defendant's answer as indicated by plaintiff's motion to strike out. Cases cited under Point 1.
This is an action upon a policy of life insurance for the sum of two thousand dollars ($ 2000) issued by the defendant company on the life of one Vincenza Caruso. The petition alleges that the defendant is a corporation organized and existing under and by virtue of the laws of the State of Kansas, and duly licensed to "transact a life insurance business" in this State; that "on April 10, 1918, the defendant, in consideration of the payment by Vincenza Caruso to the defendant of $ 94.84, and a like premium to be paid on the tenth day of April, 1919, and in every year thereafter, during the continuance of the policy, until premiums shall have been paid for twenty years from April 10, 1918, did execute and deliver to said Vincenza Caruso its policy of insurance, in writing, whereby it insured the life of said Vincenza Caruso in the sum of $ 2000 for the benefit of said Vincenza Caruso's executors, and administrators or assigns." Alleging that thereafter the insured, for a valuable consideration, assigned the policy to plaintiff, a sister of the insured, that the insured died on August 18, 1918, that the premiums were duly paid as agreed, and that the policy was in force at the time of the death of the insured, etc., judgment is prayed for the amount of the policy, together with damages and attorneys fees for defendant's alleged vexatious refusal to pay the same.
The answer admits the incorporation of the defendant under the laws of the State of Kansas, and "that it is duly licensed to transmit the business of life insurance in the State of Missouri," and further admits the issuance of the policy and the death of the insured, as alleged. The answer then alleges that in the application for the policy the insured represented that she had never had a cancer or tumor; that said representations were false in that at the time of the application for the policy the applicant was, and for a long time prior thereto had been afflicted with a cancer or tumor, and that this contributed to her death. The answer further alleges that the policy was procured by fraud in that the real Vincenza Caruso did not answer the "medical questions" contained in the application, and did not undergo the medical examination for the insurance, but that another person was substituted for and fraudulently represented herself to be the real Vincenza Caruso.
Defendant also filed a cross-bill praying for a rescission and cancellation of the contract of insurance on the ground of the fraud alleged to have been perpetuated upon it by reason of the alleged substitution of some other person for the real Vincenza Caruso when the "medical questions" were propounded and the medical examination was had.
Two motions were filed by plaintiff below, one being a motion to strike out the defense set up in the answer predicated upon the alleged misrepresentations, made in the application for the policy, concerning the state of health of the insured, and the defense of fraud respecting the aforesaid alleged substitution of some other person for the real Vincenza Caruso; the other motion being one to strike out all of the defendant's cross-bill. These motions proceeded upon the theory that the averments of the answer sought to be stricken out constituted no defense, and that defendant was entitled to no relief on account of the matter set up in its cross-bill, for the reason that a copy of the application was not attached to the policy sued on, nor was the substance thereof indorsed upon the policy. Both of these motions were sustained. The defendant having refused to plead further, the cause was tried before the court without a jury, resulting in a verdict and judgment in favor of the plaintiff in the total sum of $ 2514, and the defendant appealed.
Appellant has duly kept alive and brought here for review its exceptions to the rulings of the trial court in sustaining the motion to strike out the aforesaid part of its answer, and in sustaining as well the motion to strike out all of its cross-bill. The rulings of the learned trial court upon these motions were based upon two rulings of this court to the effect that, in view of the provisions of section 6978, Revised Statutes 1909, a life insurance company, doing business as such in this State, and which issued and delivered its policy within this State, was required by the provisions of said section to attach to the policy a copy of the insured's application therefor, or to indorse the substance thereof upon the policy; and that the failure of the company so to do would preclude it from availing itself of any of the alleged fraud with respect to the application of the insured for the insurance. [See Schuler v. Metropolitan Life Ins. Co., 191 Mo.App. 52, 176 S.W. 274; Hicks v. Life Ins. Co., 196 Mo.App. 162, 190 S.W. 661.]
An examination of the insurance statutes, however, readily reveals that the above mentioned cases proceeded upon the erroneous theory that section 6978, supra, applies to companies doing a life insurance business upon the "level rate" plan, i. e. issuing ordinary or "old line" life insurance policies; whereas, in fact, this section is a part of article 4, chapter 61, Revised Statutes 1909, which article applies alone to "insurance on the stipulated premium plan," as therein defined, and constitutes a separate code respecting insurance of that character. The section, as it appears in the revision of 1909, is as follows:
"Every corporation, company or association transacting business under the provisions of this article shall, upon the issuance of every policy, attach to such policy or indorse thereon the substance of the application upon which such policy was issued, and which is made a part of the contract of insurance, or referred to therein, or which may in any manner affect the validity of such policy." (Italics ours.)
This article, i. e., article 4 of chapter 61, supra, was enacted in 1899 (Laws 1899, p. 261) for the purpose of defining and regulating life insurance on the "stipulated premium plan," as appears from the title of the act. Section 6 of the original act, now section 6968, Revised Statutes 1909 clearly indicates the essential difference between this class of insurance and the ordinary or "old line" insurance, i. e., insurance on a level or flat rate plan, "where for a fixed premium, payable, without condition, at stated intervals, a sum certain is to be paid upon death without condition." [Toomey v. Supreme Lodge K. of P., 147 Mo. 129, 48 S.W. 936.] Though the act contemplates a "stipulated premium," in the first instance, the last mentioned section thereof, after providing for the creation of an emergency fund, provides that if this fund be exhausted by reason of...
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