Mayhew v. Mutual Life of Illinois, a Corp.

• Citation: 266 S.W. 1001,217 Mo.App. 429
• Parties: D. S. MAYHEW, Administrator of the Estate of FERN B. WILMESHIR, Respondent, v. MUTUAL LIFE OF ILLINOIS, a Corporation, Appellant
• Decision Date: 16 December 1924
• Court: Missouri Court of Appeals

266 S.W. 1001

217 Mo.App. 429

D. S. MAYHEW, Administrator of the Estate of FERN B. WILMESHIR, Respondent, v. MUTUAL LIFE OF ILLINOIS, a Corporation, Appellant

Court of Appeals of Missouri, Springfield

December 16, 1924

Appeal from the Circuit Court of Lawrence County.--Hon. Chas. L Henson, Judge.

AFFIRMED.

Judgment affirmed.

Dave Dabbs, of Kansas City, for appellant.

(1) Petition does not state facts sufficient to constitute a cause of action. (1) It does not allege the policy was in force at the time of death of the insured. Shaver v Mercantile Ins. Co., 79 Mo.App. 420, l. c. 424-425. (2) It does not allege the beneficiary, Fern B. Wilmeshir survived the insured, Samuel F. Wilmeshir, nor the relationship of the beneficiary to the insured. Sec. 6147, R S. 1919; Shaver v. Merc. Ins. Co., 79 Mo.App. 420, l. c. 425; Highland Investment Co. v. K. C. Computing Scales Co., 277 Mo. 365, 209 S.W. 895, l. c. 897; Hanks v. Hanks, 218 Mo. l. c. 679, 117 S.W. l. c. 1104; Pomroy v. Fullerton, 113 Mo. l. c. 453, 21 S.W. 19. (3) It does not allege the terms and conditions of the policy and that plaintiff has complied with all the terms and conditions of the policy. Howe v. Pacific Mutual Ins. Co., 75 Mo.App. 63; Storey v. Am. Central Ins. Co., 61 Mo.App. 534, l. c. 538; Moore v. Mountcastle, 72 Mo. 607-608; Frazer v. Roberts, 32 Mo. 457, 461; Shaver v. Mercantile, etc., Ins. Co., 79 Mo.App. 420, 425. (2) The court erred in refusing defendant's demurrer to the evidence offered at the close of plaintiff's case and at the close of all the evidence. (1) The proof of death showed breach of warranties which invalidated the policy. Stephens v. Met. Life Ins. Co., 176 S.W. 253, l. c. 255, 190 Mo.App. 673; Castens v. Supreme Lodge, 185 S.W. 264; Ins. Co. v. Newton, 89 U.S. 32; Almond v. Modern Woodman, 133 Mo. 382, 113 S.W. 695; Queatham v. Modern Woodman, 148 Mo.App. 33, 127 S.W. 651; Bruck v. John Hancock Mut. L. Ins. Co., 185 S.W. 753, l. c. 755-756, 194 Mo.App. 529. (2) The policy expressly provided that the insurance became suspended for all purposes upon the insured becoming insane, and further it excepted suicide in the insuring clause. There was no allegation in the petition that insured was a resident of Missouri at the time policy was issued or that he died in Missouri. To bring the case within the provisions of sec. 6150, R. S. 1919. Sec. 6150, R. S. 1919; Lukins v. Int. Life Ins. Co., 269 Mo. 574, 191 S.W. 418, l. c. 421-422. (3) Plaintiff's instruction No. 1 is erroneous. (1) It is broader than the pleadings, in that it requires the jury to find that the beneficiary, Fern B. Wilmeshir, survived the insured, Samuel F. Wilmeshir, which was not alleged in the petition. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722, 724; Degonia v. Railroad, 224 Mo. 589, 123 S.W. 817; State ex rel. Nat'l. Newsp. Ass'n v. Ellison, 176 S.W. 13. (2) It ignores the issue that deceased was not in good health at time of delivery of the policy and also ignores issue that he was insane at time policy was delivered. Stephens v. Met. Iife Ins. Co., 190 Mo.App. 673, 176 S.W. 253, 254; Lynch v. Prudential Ins. Co., 150 Mo.App. 461, 134 S.W. 145; Salts v. Prudential Ins. Co., 140 Mo.App. 142, 120 S.W. 714; Rissmiller v. St. L. & H. Ry. Co., 187 S.W. 573 (Mo. App. not officially reported); Friend v. Jones, 185 S.W. 1159 (Mo. App. not officially reported); Rawleigh Medical Co. v. Abernathy, 196 S.W. 1042 (Mo. App. not officially reported); Sherwood v. St. L. & S.W. Ry. Co., 187 S.W. 260 (Mo. App. not officially reported); State ex rel., Hartford Fire Ins. Co. v. Trimble, (Mo. Sup. Court) 250 S.W. 393. (3) It does not require the jury to find that deceased was a resident of Missouri at the time the policy was issued so as to bring the contract within the provisions of Sec. 6142, R. S. 1919, and Sec. 6150, R. S. 1919. Jones v. Derassett, 185 S.W. 239 (Mo. App. not officially reported); Rissmiller v. St. L. & H. Ry. Co., 187 S.W. 573. (4) It assumes policy was in force at time of death of insured. State ex rel. Hartford Fire Ins. Co. v. Trimble, 250 S.W. 393, l. c. 395. (Mo. Supreme Court not yet officially reported. (5) It is inconsistent with instructions Nos. 4 and 9 given in behalf of defendant, which last instructions properly submit the issues as to insured's health at the time of delivery of the policy and of his having received medical or surgical attention. State ex rel., Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722, 725; Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. 613, 45 S.W. 641; Rosenberg v. Gen'l Accident F. & L. Assurance Co., 246 S.W. 1009 (Mo. App. not officially reported); State ex rel. v. Ellison, 272 Mo. 538, 199 S.W. 984; Pullam v. Vaughn, 218 S.W. 899 (by this court). (4) Plaintiff's instruction No. 3 is erroneous. (1) This instruction confines the jury to only one issue, that is, whether misrepresentations, if any, contributed to insured's death and directs the jury to return a verdict for plaintiff based on that issue alone. Peoples Bank v. Baker, 193 S.W. 632. (By this court); Pullam v. Vaughn, 218 S.W. 889. (2) It is also erroneous as being argumentative and an undue comment on the evidence. McClure Bros. v. School Dist., 66 Mo.App. 84. (3) This instruction does not require the jury to find that deceased was a resident of Missouri at time the policy was issued so as to bring the case within the provisions of Sec. 6142, R. S. 1919, upon which said instruction is based. Sec. 6142, R. S. 1919. (5) Defendant's instruction marked "C" should have been given. There was evidence in the proof of loss and of witnesses that deceased was insane at time the application was made and at the time the policy was delivered. Stephens v. Met. Life Ins. Co., 176 S.W. 253, 254, 190 Mo.App. 673; Lynch v. Prudential Ins. Co., 150 Mo.App. 461, 131 S.W. 145; Salts v. Prudential Ins. Co., 140 Mo.App. 142, 120 S.W. 714. (6) Defendant's instruction marked "D" should have been given. The issue as to whether the false representations were material to the acceptance of the risk should have been submitted under the pleadings. The petition did not allege: (a) that deceased was a resident of Missouri when the policy was issued; (b) that deceased died in Missouri; (c) that the policy was delivered in Missouri so as to bring the case within Sec. 6142, R. S. 1919. Sec. 6142, R. S. 1919; Lewis v. N. Y. Life Ins. Co., 209 S.W. 625, 629, 201 Mo.App. 48; Aloe v. Mutual Reserve Ins. Co., 147 Mo. 561, 578, 49 S.W. 553, 557; Le Grand v. Sec. Ben. Ass'n., 240 S.W. 852, 210 Mo.App. 700. (7) Defendant's instruction marked "E" should have been given. The proof of loss contained evidence to support this instruction; also witnesses so testified and deceased warranted in his application that he was not suffering from any physical or mental infirmities. Stephens v. Met. Life Ins. Co., 176 S.W. 253, 254, 190 Mo.App. 673; Lynch v. Prudential Ins. Co., 150 Mo.App. 461, 131 S.W. 145; Salts v. Prudential Life Ins. Co., 140 Mo.App. 142, 120 S.W. 714.

James E. Sater, of Monett, for respondent.

(1) Appellant's first contention is that the petition does not state a cause of action. If the petition is defective such defects are cured by the answer and verdict. No one can read the answer and not gather from it that the policy was in force at the time of the death of the insured. (2) Appellant's second assignment of error that its demurrer at the close of the evidence should have been given is clearly without merit. The case of Bruck v. John Hancock Mutual L. Ins. Co., 185 S.W. 753, 194 Mo.App. 529, is cited by appellant in support of this proposition but this case clearly demonstrates that the case at bar should have been submitted to the jury. Mr. Mayhew testified: "After he returned to work at his office he appeared cheerful and seemed to gain flesh. He ate hearty, and seemed to eat a little heartier than he had just some prior to that. He seemed to recover completely." Dr. Fergerson testifies as follows: "As a physician, from my observation of him there in the office I considered that he had completely recovered." In Bruck v. Insurance Co., supra, the court held: "In no event can an admission of this character be conclusive against the plaintiff as a matter of law thereby in effect taking the case out of the operation of the statute unless it is a case where nothing whatsoever appears in evidence tending in any way to explain or contradict the admission or impair the force and effect thereof. (3) Sec 6142, R. S. 1919, provides that the defenses interposed in this case are questions for the jury; and in the Bruck case (supra) the court says: "In a vast array of cases similar in their essential facts to that now before us our courts have held that whether the matter alleged to have been misrepresented actually contributed to the contingency or event on which the policy is to become due and payable is a question for the jury." Bultralik v. Metropolitan Life Insurance Co., 233 S.W. 250, is a well-considered case on the question at bar. I respectfully submit defendant's demurrer was properly overruled. (4) Appellant is not in position to raise the question that the policy sued on is not within the provisione of Sec. 6142, R. S. 1919, because in its instructions numbered 4 and 9 it recognizes the effect of the statute, and in its answer it tenders the premium paid, and on trial of said cause proved tender of premium, so that it might take advantage of the defenses invoked. Instruction 1 given on behalf of the plaintiff is correct. It is practically the instruction approved by the Supreme Court in case of Keller v. Home Life Insurance Co., 198 Mo. 440. Instruction number 3 given on part of the plaintiff is correct. It is expressly approved in the case of Conner v. Life...