Minich v. M. F. A. Mut. Ins. Co.

• Citation: 325 S.W.2d 56
• Decision Date: 06 April 1959
• Docket Number: No. 22849,22849
• Parties: Cecil H. MINICH, Respondent, v. M. F. A. MUTUAL INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

Page 56

325 S.W.2d 56

Cecil H. MINICH, Respondent, v. M. F. A. MUTUAL INSURANCE COMPANY, Appellant.

No. 22849.

Kansas City Court of Appeals, Missouri.

April 6, 1959.

Errol Joyce, Robert Devoy, Brookfield, Hess & Collins, Macon, for appellant.

James J. Wheeler, Keytesville, for respondent.

SPERRY, Commissioner.

Plaintiff, Minich, had a liability insurance policy on his automobile, issued by defendant. He suffered a judgment for damages growing out of a collision between his automobile and that of another. Defendant refused to accept liability on the policy, contending that its issuance was procured by false representations made by plaintiff in his written application for the policy. Plaintiff instituted this suit, under the declaratory judgment act, to test the validity of the policy. From a judgment in his favor, rendered without aid of a jury, defendant appeals.

Plaintiff proved the policy, its issuance by defendant, and the payment of the premium. It was in full force and effect at the time the collision occurred, provided that it is not invalidated by reason of false representations made by plaintiff to defendant's agent in his application.

Defendant relies on three alleged misrepresentations, to-wit:

1. That plaintiff had never had a policy cancelled prior thereto when, in fact, he had suffered a cancellation.

2. That plaintiff stated that he had no physical defect when, in truth, he was blind in the left eye.

3. That plaintiff stated that he did not use alcohol when, in fact, he did use alcoholic beverages.

The third mentioned contention is of doubtful merit because it is not at all clear, from the evidence, that plaintiff used alcohol to excess or, at least to a greater extent than defendant's agent admitted that plaintiff told him that he drank. Therefore, we will not further allude to that contention. See Bennett v. Standard Accident Insurance Co., 209 Mo.App. 81, 237 S.W. 144, 149, Par. 3.

We will discuss the evidence as to the other two contentions but, before doing so, we will state the law applicable in cases of this character, where an applicant for an insurance policy furnishes insurer with false information in the application.

'A material misrepresentation made by an applicant for insurance, in reliance on which a policy is issued to him, renders the policy voidable * * *.' State Farm Mutual Automobile Insurance Co. v. West, D.C., 149 F.Supp. 289, 305; Gooch v. Motors Insurance Co., Mo.App., 312 S.W.2d 605, 608. This is true whether such misrepresentation be made intentionally or through mistake and in good faith. State Farm Mutual Automobile Insurance Co. v. West, supra; Smith v. American Automobile Insurance Co., 188 Mo.App. 297, 303-304, 175 S.W. 113. An application for a policy of insurance is an offer, intended to be relied upon and to become a part of the contract, when accepted. Absent fraud or mistake one is bound by his written contract and an application as an offer is contractual in nature. Dickinson v. Bankers Life & Casualty Co., Mo.App., Springfield, 283 S.W.2d 658, 662.

A representation that he had not previously had a policy cancelled was material to the risk and grounds for avoidance of the policy if untrue. State Farm Mutual Automobile Insurance Co. v. Gaekle, D.C., 131 F.Supp. 745, 746; Teich v. Globe Indemnity Co., Mo.App., 25 S.W.2d 554, 556-557; Maryland Casualty Co. v. Eddy, 6 Cir., 239 F. 477, 480; Harris v. Allstate Insurance Co., Tex.Civ.App., 249 S.W.2d 669, 672-673; Strong v. State Farm Mutual Ins. Co., 76 S.D. 367, 78 N.W.2d 828, 829; Republic Mutual Insurance Co. v. Wilson, 66 Ohio App. 522, 35 N.E.2d 467, 468; Kravit v. United States Casualty Co., 278 Mass. 178, 179 N.E. 399, 400.

The testimony regarding cancellation was, on behalf of defendant's agent, to the effect that he asked plaintiff whether or not any policy had been previously cancelled and that plaintiff gave a negative answer, which was incorporated in the application. The application, on its face, shows these facts. Plaintiff's father testified to the effect that plaintiff told defendant's agent, in his presence, at the time the application was made, that he had never been cancelled but that he 'cancelled himself' once. There was documentary evidence, undisputed, to the effect that plaintiff did...