Roedel v. John Hancock Mut. Life Ins. Co.

• Decision Date: 16 July 1913
• Citation: 160 S.W. 44,176 Mo. App. 584
• Parties: ROEDEL v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: Missouri Court of Appeals

160 S.W. 44

176 Mo. App. 584

ROEDEL v. JOHN HANCOCK MUT. LIFE INS. CO.

St. Louis Court of Appeals. Missouri.

July 16, 1913.

Rehearing Denied November 4, 1913.

1. INSURANCE (§ 646) — LIFE INSURANCE — BURDEN OF PROOF—EXISTING ILLNESS.

The burden was on a life insurance company to show that insured was ill from a progressive disease, when he took out the policy sued on and stated in his application that he was in good health.

2. INSURANCE (§ 291) — LIFE INSURANCE — MISREPRESENTATIONS—EFFECT ON POLICY.

Under Rev. St. 1909, § 6937, providing that no misrepresentations made in obtaining a life policy shall render the policy void unless the matter misrepresented actually contributed to the event on which the policy became payable, a misrepresentation in the application that insured was then in good health would not avoid the policy, unless he was then suffering from an infirmity which actually contributed to his death.

3. INSURANCE (§ 668)—LIFE INSURANCE—ACTIONS—JURY QUESTION.

Under Rev. St. 1909, § 6937, providing that no misrepresentation in securing a life policy shall render the policy void unless the matter misrepresented actually contributed to the event on which the policy was to become payable, "and whether it so contributed in any case shall be a question for the jury," the question whether the matter misrepresented contributed to the event is a question for the jury in every case, irrespective of the condition of the evidence thereon.

4. INSURANCE (§ 668)—LIFE INSURANCE—ACTIONS—JURY QUESTION.

Evidence, in an action on a life policy, held to make it a jury question whether insured was in good health as represented in his application at the time the policy was issued.

5. APPEAL AND ERROR (§ 1002)—REVIEW—CONFLICTING EVIDENCE.

The appellate court will not review a finding of fact made on conflicting evidence.

6. INSURANCE (§ 669)—LIFE INSURANCE—INSTRUCTIONS —MISREPRESENTATIONS.

An instruction that, to avoid a policy for a misrepresentation in the application that insured was in good health, any representation in procuring the insurance must not only have been with respect to a matter which contributed to the event on which the policy was to become payable, but must have been made with knowledge of its falsity, was not erroneous to defendant's prejudice.

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

Answers by insured, in his application for a life policy, that he was then in good health, etc., were not warranties, but were representations.

8. APPEAL AND ERROR (§ 302)—REVIEW—REFUSAL OF INSTRUCTIONS.

Alleged error in refusing instructions cannot be reviewed, where the question was not raised in appellant's motion for new trial.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Catherine Roedel against the John Hancock Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Leahy, Saunders & Barth and Block & Sullivan, all of St. Louis, for appellant. H. A. Loevy and Bland & Cave, all of St. Louis, for respondent.

ALLEN, J.

This is an action upon a policy of insurance issued by defendant upon the life of one William Roedel, deceased Plaintiff, to whom the policy was made payable, is the widow of the insured. The cause originated before a justice of the peace, where the plaintiff had judgment, and the defendant appealed to the circuit court. Two trials have been had in the circuit court, each before the court and a jury. Upon the first plaintiff received a verdict at the hands of the jury, which was by the court set aside on the ground that it was against the weight of the evidence. The second resulted in a verdict for plaintiff for the face value of the policy, to wit, $250, with 10 per cent. interest and $75 as attorney's fees as for a vexatious refusal to pay. Judgment was entered accordingly, from which the defendant has duly appealed to this court.

The application for the policy is dated February 6, 1906, and the policy was issued February 21, 1906. The insured died August 13, 1907. The proofs of death offered in evidence by plaintiff showed that the deceased died of phthisis pulmonaris, and the physician's certificate states that, in his opinion, the insured's health was first impaired 18 months prior thereto. This certificate, however, shows upon its face that the physician who made it had not attended or prescribed for the deceased prior to his last illness, and that he first visited the deceased on March 16, 1906. In the application for insurance the deceased stated that he was in good health; that he had not within five years prior thereto had any sickness, disease, etc.; and that the last time he had consulted a physician prior thereto was in 1903 for a sprained ankle. The defendant's physician who examined the insured prior to the issuance of the policy certified that he appeared to be in good health, and that the examiner recommended the applicant, without reservation, as being safely insurable.

It appears that the insured had previously carried a policy of insurance in the defendant company which he had suffered to lapse, and that his desire was to renew the policy, but that he was told by the agent that it would be better to take a new one. The insured was a baseball player, and the evidence discloses that in the latter part of 1905 he came home from Texas, where he had been following this occupation; that upon his return he had a heavy cold and was not feeling well. There is evidence that he recovered from the cold, that his condition improved, and that he appeared to be in good health prior to and at the time of making the application for the insurance and at the time of the issuance of the policy. Such was the testimony of plaintiff and other witnesses in her behalf. There was testimony contra on behalf of defendant. The deceased's mother testified that he came home from Texas, in September, 1905, because he was sick; that in November of 1905 he had...