Metropolitan Life Ins. Co. v. Stiewing

• Decision Date: 08 April 1913
• Citation: Metropolitan Life Ins. Co. v. Stiewing, 155 S.W. 900, 173 Mo. App. 108 (Mo. App. 1913)
• Parties: METROPOLITAN LIFE INS. CO. OF NEW YORK v. STIEWING.
• Court: Missouri Court of Appeals

155 S.W. 900

173 Mo. App. 108

METROPOLITAN LIFE INS. CO. OF NEW YORK v. STIEWING.

St. Louis Court of Appeals. Missouri.

April 8, 1913.

INSURANCE (§ 250)—LIFE INSURANCE— MISREPRESENTATIONS AS TO AGE—EFFECT.

Under Rev. St. 1909, § 6937, providing that no misrepresentation made in securing a policy of life insurance shall be deemed material, or render the policy void, unless the matter misrepresented shall have contributed to the death of the insured, the provisions of a life policy, that proof of the actual age of insured may be required in the proofs of death, and the amount payable shall be the insurance which the premiums would have purchased at the true age, are unenforceable, even though the insured misstated his age in applying for the insurance; and not only would any other construction violate the express language of the statute, but it would authorize the insurance company to substitute a new contract for the one made by the parties.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by the Metropolitan Life Insurance Company of New York, a corporation, against Mary A. Stiewing, administratrix of William Storig, deceased. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

Nathan Frank, Richard A. Jones, Louis B. Sher, and M. W. Oliver, all of St. Louis, for appellant. F. H. Bacon, of St. Louis, for respondent.

REYNOLDS, P. J.

This action was brought by the Metropolitan Life Insurance Company of New York against the administratrix of William Storig, to the latter of whom the insurance company had, on the 17th of September, 1902, issued a policy on his life for the principal sum of $500, subject to the conditions of the contract of insurance and to the payment of annual premiums of $40.33 by the insured during life, the company agreeing to pay to the legal representatives of William Storig upon his death and upon receipt of due proofs thereof, the sum of $500. It is alleged in the petition that it was expressly provided in and made a condition of the contract that absolute proof of the age of the insured, namely, William Storig, might be required with proofs of claim under the policy and that the amount payable thereunder should be the insurance which the actual premium paid would have purchased at the true age of the insured. It is averred that William Storig died on or about the 16th of August, 1907; that on the 23rd day of September of that year, the defendant, Mary A. Stiewing, had been appointed administratrix of his estate by the Probate Court, had qualified and was acting as such administratrix; that prior to the death of William Storig and on or about the 6th of February, 1907, he had borrowed from plaintiff, on account of the policy, the sum of $51, which sum, together with interest at the rate of six per cent. per annum, it was expressly agreed by and between the company and Storig, should be a loan on and charge against the policy, which sum, together with interest thereon amounting to $2.50, it is averred was owing by William Storig to plaintiff at the time of his death. It is further averred that at the time of the death of William Storig there was due and payable by plaintiff as a mortuary dividend or bonus on the policy, the sum of $28.41; that the defendant, as administratrix of the estate of William Storig, after his death, submitted to plaintiff proofs thereof, wherein and whereby she stated and represented that the age of Storig at the time of the execution and delivery of the policy on the 17th of September, 1902, was fifty-three years; that relying upon these representations and statements and believing them to be true, and in ignorance of the true age of Storig, the company paid to the administratrix the sum of $474.91, the amount it believed to be due on the policy after adding thereto the bonus of $28.41 above mentioned and deducting therefrom the loan of $51.00 and $2.50, the interest due thereon. It is further alleged and charged that on the 17th of September, 1902, at the date of the execution and delivery of the policy before mentioned, the age of William Storig was not fifty-three years but in truth was seventy-two years, which fact, it is alleged, was unknown to plaintiff, nor did plaintiff, it is averred, ever have any knowledge or information in regard to the true age of William Storig, to wit, seventy-two years, until a long time after the payment by it to the administratrix of the aforenamed sum of $474.91. That sum, it is averred, was so paid to the administratrix by reason of the statements and representations contained in the proofs of death before mentioned, and in reliance upon the same and under a mistake of fact. It is further averred that the amount of insurance purchasable by the payment of an annual premium of $40.33, to be paid on a policy at the age of seventy-two years, the true and correct age of Storig at the time of the execution and delivery of the policy to him, was the sum of $272.66, so that the amount due and payable under the policy, it is averred, was not the sum of $474.91, but the sum of $272.66, plus a dividend of $28.41, less the loan of $53.50, making a total sum of $247.57, so that there is now due and payable from defendant to plaintiff, as it is averred, the difference between the amount paid, namely, $474.91, and the amount due, namely, $247.57, that is to say, the amount now due from defendant, as administratrix, to plaintiff is $227.34, as it is claimed. Averring a demand for that sum but a refusal on the part of defendant to pay it, plaintiff demands judgment for it and its costs.

Defendant filed a demurrer to this petition which, being submitted to the court, was sustained. The plaintiff electing to stand on the petition, judgment was accordingly rendered in favor of defendant, from which judgment the plaintiff has duly perfected its appeal to this court.

The error here assigned is to the action of the court in sustaining this demurrer, it being argued that where a policy of insurance contains provisions covering such matters, then, if the age of the insured has been understated, the amount of insurance or other benefit will be equitably adjusted in accordance with the terms and provisions of the policy, and that where a lower rate of premium has been paid than necessary to purchase at the true age of the insured the amount of the insurance stated, the beneficiary may recover only the sum which the premium would have purchased at the true age.

We are advised by counsel for the respective parties that the action of the trial court in sustaining the demurrer was founded upon section 6937, Revised Statutes 1909, and upon the...