Newell v. Aetna Life Insurance Company of Hartford

• Decision Date: 04 December 1923
• Citation: Newell v. Aetna Life Insurance Company of Hartford, 258 S.W. 26, 214 Mo.App. 67 (Mo. App. 1923)
• Parties: JAMES P. NEWELL, Public Administrator, in Charge of the Estate of JOHN PLUECK, Deceased, Appellant, v. AETNA LIFE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Respondent
• Court: Missouri Court of Appeals

258 S.W. 26

214 Mo.App. 67

JAMES P. NEWELL, Public Administrator, in Charge of the Estate of JOHN PLUECK, Deceased, Appellant, v. AETNA LIFE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Respondent

Court of Appeals of Missouri, St. Louis

December 4, 1923

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Miller, Judge.

AFFIRMED.

Judgment affirmed.

Daniel J. O'Keefe, Peter T. Barrett and James J. O'Donohoe for appellant.

(1)The trial court erred in giving and refusing instructions and in admitting defendant's manual of classification of risks for the following reasons: (a) The more hazardous and classification of risks clauses are overriden and nullified by the general insuring clause.Drucker v. Western Indemnity Co.,204 Mo.App. 516;Parker v. Sovereign Camp, W. of W.,196 S.W. 424.(b) The statement of the insured in his application that his occupation was that of a butcher does not amount to a continuing warranty that such shall continue to be his occupation, or that he will not engage in any other occupation.It is, at best, a mere statement of an existing fact.Prov. Life Ins. Co. v Fennell,49 Ill. 180.Warranties have been abolished by statute.Keller v. Ins. Co.,198 Mo. 372.(c) The stipulation reducing the amount of insurance in the event insured is injured after having changed his occupation to one rated by defendant in a more hazardous class is void and of no binding effect, for the reason that said stipulation contravenes section 6934, R. S. 1909, now section 6139, R. S 1919, prohibiting the making of contracts of insurance or agreements as to such contracts other than as "plainly expressed" in the policies.(d) And further, said stipulation is void because in conflict with section 6952, R. S. 1909, now section 6157, R. S. 1919, andsection 6972, R. S. 1909, now section 6178, R. S. 1919, providing that every policy "shall specify the exact sum of money which it promises to pay upon each contingency insured against."Melville v. Business Men's Assur. Company of America,253 S.W. 68.(e) The insurance cannot be whittled because neither the more hazardous occupation, table of rates nor classification of risks is set forth in the policy, attached thereto, endorsed thereon nor made a part thereof.Miller v. Ins. Co.,168 Mo.App. 330.(f) Insured did not change his occupation, for soldiering is not an occupation.Gotfredson v. German C. Accident Co.,218 F. 582(cases cited);Supreme Lodge v. Baker,163 Ala. 518;6 Cooley, section 207 (b), page 760(cases cited).(g) In any event it devolves upon defendant to plead and prove that soldiering is more hazardous than butchering, "not merely that it was so classified."Ogilvie v. Aetna Life Ins. Co.,209 P. 26.(h) And whether the insured changed his occupation, not merely that it is so classified, is a question not for the court, but for the jury.Supreme Lodge v. Baker,163 Ala. 518;Gotfredson v. German C. Accident Co.,218 F. 582;Aetna Life Ins. Co. v. Dunn,138 F. 629;Everson v. General Accid. & Assur. Corp.,202 Mass. 169;Taylor v. Ill. Comm. Men's Ass'n,84 Neb. 799.(i) The policy stipulated that: "In any State where the law so provides, the classification of risks shall be based upon the last manual in use prior to the date of accident of which a copy shall have been filed with the Commissioner of Insurance of said State."The law of Missouri does not so provide.Hence the manual offered and received in evidence is incompetent and cannot affect the amount of insurance.(j) To allow the contract to be affected by an aftercompiled table of rates or classification of risks would be an impairment of contract.Dessauer v. Maccabees,278 Mo. 57.(k) Insured's sister informed Jerome Karst, defendant's agent, prior to payment of last premium, that insured was a soldier and he encouraged her to pay the premium.This operates as a waiver of the right, if any existed, to scale the amount of insurance.Brabham v. Ins. Co.,253 S.W. 786;Sovereign Camp v. Little,225 S.W. 574.An agent is the alter ego of the company, with power "to alter, waive, rescind or vary the whole or any provision of the policy, notwithstanding the policy provides that 'no contract, alteration or discharge of contract, waiver of forfeiture, nor granting of permits or credits, shall be valid unless the same shall be in writing, signed by the president or vice-president and one other officer of the association.'"James v. Life Association,148 Mo. 1;Peebles v. Columbia Woodmen,164 S.W. 296.And since a corporation can only act through agents, provisions against waiver, modifications and alterations by agents are void.1 Mechem on Agency, pp. 765-766, cases cited.The knowledge of the soliciting agent is imputable to the company.Henry v. Sneed,99 Mo. 407;Kearns v. Casualty Co.,150 Minn. 486;7 Cooley, section 2521 (c), pp. 933, 934, page of cases cited;21 R. C. L., pp. 838-840, cases cited;3 R. C. L.(Supp.), p. 1195;1 Mechem, sec. 1049;Ins. Co. v. Scott,218 S.W. 53.Indeed, it is conclusively presumed that the agent communicated to his principal all facts known to him.2 Mechem on Agency, section 1806, p. 1390, cases cited.(1) Even taking defendant's viewpoint, the amount of the verdict is inadequate under the accumulations clause of the policy.(2) The insured came to his death through accidental means within the meaning of the policy.Under the authorities no distinction is made between death by accident and one by accidental means.Interstate Business Men's Acc. Asso. v. Lester,257 F. 225, writ of certiorari denied in250 U.S. 662;State Life Ins. Co. v. Allison,269 F. 93;Eicks Admr. v. Fidelity & Casualty Co.,253 S.W. 1029;Young v. Railway Mail Ass'n,126 Mo.App. 325;Lovelave Travelers' Protective Ass'n, 126 Mo. 104;Acc. Co. v. Carson,99 Ky. 445;Campbell v. Fidelity & C. Co.,109 Ky. 670;Feder v. Iowa State Traveling Men's Ass'n,107 Iowa 538;Phoenix Acc., etc., Ass'n v. Stiver,42 Ind.App. 636;Throop v. Western Indemnity Co.,193 P. 269;Collins v. Fidelity & Casualty Co.,63 Mo.App. 253;Withers v. Pacific Mutual L. Ins. Co.,58 Mont. 485;Harper's Admr. The Phoenix Ins. Co., 19 Mo. 506;Lewis v. Ocean Accident & Guarantee Corporation,224 N.Y. 18;Summers v. Fidelity Mutual Aid Asso.,84 Mo.App. 605;Atlanta Acci. Asso. v. Alexander,104 Ga. 709;General Acci. & Life Assur. Corp. v. Meredith,141 Ky. 92;United States Casualty Co. v. Griffis,186 Ind. 126;Nax v. Travelers' Ins. Co.,130 F. 985;Rowe v. United Commercial Travelers,186 Iowa 454;Lewis v. Iowa State Traveling Men's Ass'n,248 F. 602;Allen v. Travelers Ass'n,163 Iowa 222;Starr v. Aetna Life,41 Wash. 199;Union Accident Co. v. Willis,44 Okla. 578;Hutchcraft's Exr. v. Travelers Ins. Co.,87 Ky. 300;Utter v. Ins. Co.,65 Mich. 545;American M. Benefit Ass'n v. Joshua,200 S.W. 261;Nat. Life & Acc. Ins. Co. v. Hodge,244 S.W. 862;Great Southern Life v. Churchwell, 216 P. 676.

Jones, Hocker, Sullivan & Angert for respondent.

NIPPER, C. Allen, P. J., Becker and Daues, JJ., concur.

OPINION

NIPPER, C.--

This is a suit on an accident policy of insurance, brought by the Public Administrator of the city of St. Louis, who was in charge of and administering upon the estate of John Plueck, deceased.The policy was issued on the fifth day of August, 1911, insuring the said John Plueck for a period of one year therefrom, against bodily injury caused solely and directly by external, violent, and accidental means (excluding suicide whether sane or insane).The policy was renewed annually, up to and including the fifth of August, 1918.Plueck died on the thirtieth of September, 1918.The following provisions of the policy are set out in the abstract, and referred to as being the material parts of the policy that in any way affect the controversy here:

"Principal Sum, First Year

$ 2,000.00

"Increasing to

3,000.00

"In Consideration of the premium of Fifteen and no/100 Dollars, and of the statements in the Schedule of Warranties endowered hereon, which statements the Insured makes by accepting this Policy and warrants to be true, the

"Aetna Life Insurance Company, of

Hartford Connecticut,

"Does Hereby Insure the person named and described in said Schedule for the term of 12 months from the 5th day of Aug., 1911(commencing and ending at twelve o'clock noon, standard time), against disability or death resulting directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means, suicide (sane or insane) not included, as follows:

"Part I. General Indemnities.

"If such injuries alone totally disable the Insured, that is, immediately, continuously and wholly prevent him from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous total disability and within ninety days from date of accident, result in any one of the losses described below, the Company will pay the sum specified opposite such loss and in addition will pay weekly indemnity for the period of such disability at the rate per week provided in Part II-A; or, if such injuries alone result within ninety days from date of accident in any one of the losses described below, without such disability, the Company will pay the sum specified opposite such loss.

"Loss of:

"A.Life . . . The Principal Sum of Two Thousand Dollars.

"Part V. Accumulations.

"The original principal sum hereby insured will be increased five per cent in the second and each subsequent year for ten consecutive years, until such increases amount to fifty per cent. of the original sum insured, and thereafter, the amount insured will be the original Principal Sum plus the accumulations."

"Part IX.Non-Forfeiture Provision.

"If the...