Pacific Mut. Life Ins. Co. v. Glaser

• Citation: 245 Mo. 377,150 S.W. 549
• Parties: PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. GLASER et ux.
• Decision Date: 05 July 1912
• Court: United States State Supreme Court of Missouri

150 S.W. 549

245 Mo. 377

PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. GLASER et ux.

Supreme Court of Missouri, Division No. 2.

July 5, 1912.

Rehearing Denied October 9, 1912.

1. INSURANCE (§ 256 — LIFE INSURANCE MISREPRESENTATIONS.

Rev. St. 1909, § 6937, providing that no misrepresentation made in obtaining life insurance shall be deemed material or render the policy void, "unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable," has no application to a suit to avoid the policy during the life of the assured.

2. INSURANCE (§ 265) — LIFE INSURANCE— WARRANTIES.

Assured having in his application for life insurance warranted his answers to be true, and the policy having provided that it was based on the application, made a part thereof, an answer therein that no other company had refused him insurance was not a mere representation, which is not part of the contract, and invalidates the policy only when false in a matter material to the risk, but a warranty which, if not strictly true even if not material to the risk, renders the policy voidable.

3. INSURANCE (§ 268) — LIFE INSURANCE — CANCELLATION—MISTAKE.

Cancellation of a life policy may be had in a suit in equity on the ground of mistake as to a fact material to the risk for breach of assured's warranty that he had not been refused insurance by any other company, though he made his statement in good faith.

Appeal from St. Louis Circuit Court ; Hugo Muench, Judge.

Suit by the Pacific Mutual Life Insurance Company of California against Joseph Glaser and wife. Bill dismissed, and plaintiff appeals. Reversed and remanded, with directions.

Jones, Jones, Rocker & Davis, of St. Louis, for appellant. David Goldsmith, of St. Louis, for respondents.

KENNISH, J.

This suit in equity was brought in the circuit court of the city of St. Louis by the Pacific Mutual Life Insurance Company as plaintiff against the defendants Joseph Glaser and Carrie Glaser, his wife. The purpose of the suit was to have canceled and annulled by decree of court a certain policy of insurance for $10,000 theretofore issued by plaintiff upon the life of defendant Joseph Glaser. Upon a trial the court dismissed the bill, and plaintiff appealed.

In substance, it is alleged in the petition that the defendant Joseph Glaser on the 27th day of December, 1906, made written application to plaintiff for a policy of insurance on his life in the sum of $10,000, and payable to the defendant Carrie Glaser in the event of his death ; that said policy was issued to the said Joseph Glaser, and was then in his possession ; that said policy was issued by the plaintiff and accepted by the defendant Joseph Glaser solely upon certain statements, warranties, and representations contained in the application and made a part of the policy ; that said statements, warranties, and representations were false, incomplete, and untrue, and that the same were intentionally false or answered by mistake or inadvertence, and constituted a fraud upon the plaintiff ; that immediately upon discovery of the falsity of the statements, etc., plaintiff tendered to the defendants the full amount of the premium paid to plaintiff upon said policy and demanded the surrender and return of said policy, which defendants refused to do. The prayer is that the court require the defendants to produce said policy in court, and that the same be adjudged void, and for general relief. The answer was a general denial.

Plaintiff introduced in evidence the policy in controversy ; also the written application and medical examination of the defendant Joseph Glaser, upon which the policy was issued. It was stipulated in the policy that "all insurance provided by this policy is based upon the written and printed application therefor, which is made a part of the policy," etc. In the written application the applicant, Joseph Glaser, made the statement that "no company or association to which I have ever applied for any life, accident or health insurance has refused me on the plan asked for, or postponed me." And in the medical examination, attached to and made a part of the application, the applicant was asked the question, "What company or society has declined to issue a policy on your life?" and answered, "None." The following declaration was also contained in said application, namely: "I hereby warrant that all the foregoing statements and answers and all those that I make to the company's medical examiner are complete, true, and correct, and, if any such statement or answer is incomplete, untrue, or incorrect, no valid claim shall arise under such policy on account of death or disability occurring within one year from its date." Plaintiff also introduced testimony tending to prove that on the 21st day of November, 1904, being about two years prior to the date of the application for the policy in suit, the defendant Joseph Glaser made a written application for insurance upon his life to the Illinois Life Insurance Company, through its agent, Charles K. Lehrberg; that he was examined by the physician of the said last-named company, and that on the 3d day of December, 1904, the application was rejected by the medical board of said company, on the ground that the medical examination disclosed that the applicant was afflicted with glycosuria, a disease of the kidneys; that on the 7th day of December, 1904, letters properly addressed were sent to both Lehrberg, the agent, and the defendant Joseph Glaser, notifying them of the rejection of said application. It was further shown by plaintiff that on the 14th day of June, 1907, plaintiff notified defendants in writing that the policy issued to Joseph Glaser was canceled and rescinded on account of misrepresentations and concealment of material facts and breach of warranties, and tendered to defendants the amount received as premiums on said policies. The defendant Joseph Glaser, as a witness in his own behalf, admitted having made application for insurance to the Illinois Life Insurance Company as shown by the testimony for plaintiff, but further testified that a day or two after he had delivered the application to agent Lehrberg he met said agent on the street and directed him to withdraw and cancel his said application, and that he never received any notice or communication thereafter from the company or from Lehrberg "that they received my application or that they refused me," that, when he applied for insurance to the plaintiff insurance company, he did so in good faith, and had no knowledge that his application to the Illinois Life Insurance Company had been rejected.

The only conflict in the testimony was as to whether the defendant notified Lehrberg, the agent of the Illinois Life Insurance Company, that he canceled and withdrew his application for insurance in that company, and also as to whether defendant had received any notice from the Illinois Life Insurance Company or had any knowledge that his application had been rejected. Upon the question of fact as to whether Glaser had notified Lehrberg of the withdrawal of his application, the testimony shows the following: Glaser testified in his deposition that he met Lehrberg on the street a day or two after he had signed the application, and informed him that he did not want the insurance applied for. The application was dated November 21, 1904. At the trial Glaser testified that it might have been two or three days after he had signed the application when he met Lehrberg and informed him as above. When shown his medical examination, dated and signed November 30, 1904, he admitted that he must have been mistaken as to the time of meeting Lehrberg on the street. On the other hand, there is the testimony of Lehrberg denying that Glaser had ever spoken to him as to the withdrawal of the application. In corroboration of Lehrberg, it was shown in evidence that the proper officers of the company, after the date of the alleged withdrawal, proceeded to pass upon the application, and, after rejecting it, wrote letters to Glaser and Lehrberg to that effect. There was also a letter from Lehrberg to the company, dated December 8, 1904, acknowledging the receipt of the letter notifying him of the rejection of Glaser's application, protesting against the action so taken, and insisting upon a reconsideration of the application; also the answer of the company, dated December 9, 1904, suggesting a medical re-examination of Glaser, and that a physician would be in St. Louis within a few days, at which time such re-examination could be made that the medical examiner of the company, Dr. Wood, and Lehrberg thereafter went to see Glaser for the purpose of re-examination, but did not find him at home.

Upon the remaining question of fact as to the notification of Glaser by the Illinois Life Insurance Company that his application had been rejected, against the testimony of Glaser that such notification was never received by him, and that he had no knowledge of such action of the company upon his application, there is the testimony of the emplorés of the company that said letter of notification 'was written and the circumstantial evidence as to the course of business of the company in addressing and mailing such letters.

Upon the foregoing issues and testimony, we are to determine whether the trial court erred in its decree denying the relief prayed for and dismissing plaintiff's bill. Most of the cases in the books that treat of alleged untrue statements and misrepresentations...