Salts v. Prudential Ins. Co.

• Decision Date: 08 June 1909
• Parties: SALTS v. PRUDENTIAL INS. CO.
• Court: Missouri Court of Appeals

120 S.W. 714

140 Mo. App. 142

SALTS v. PRUDENTIAL INS. CO.

St. Louis Court of Appeals. Missouri.

June 8, 1909.

Rehearing Denied June 22, 1909.

1. INSURANCE (§§ 264, 268)—"WARRANTY" — EFFECT OF BREACH.

A warranty, in the law of insurance, is not matter collateral to the contract, stated as an inducement to the other party to enter into the agreement, as a representation is, but is parcel of the contract, and, in the absence of a statute to the contrary, invalidates the obligation if not strictly true, even though the thing warranted does not affect the risk.

2. INSURANCE (§ 264) — "WARRANTY" — "CONDITION PRECEDENT."

The terms "warranty" and "condition precedent" are used interchangeably in insurance law, and in many instances an insurance warranty is nothing more or less than a condition precedent to the taking effect of the contract, as when the insured warrants the premium will be paid by the date of the policy.

3. INSURANCE (§ 291) — LIFE INSURANCE — AVOIDANCE OF POLICY FOR MISREPRESENTATION—STATUTES—APPLICABILITY.

Rev. St. 1899, § 7890 (Ann. St. 1906, p. 3746), provides that no misrepresentation made in obtaining a policy of 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 has become due. Insured warranted in her application that she was in sound health, and the policy provided that no claim would be paid unless at the date thereof insured was in sound health, and also provided that if insured should die in one or more years after such date, and all premiums had been paid, etc., the policy should be incontestable. Held, that the statute applied to the conditions and stipulations in the policy as well as to misrepresentations in the application, and hence though insured was not in sound health when the policy was delivered, it was not thereby avoided unless such ill health caused or contributed to her death.

4. INSURANCE (§ 659) — LIFE INSURANCE — CAUSE OF DEATH—EVIDENCE.

In an action on a life insurance policy, a physician's certificate as to the cause of death, not referred to in the proofs of loss, was inadmissible.

5. APPEAL AND ERROR (§ 205)—QUESTIONS REVIEWABLE—EXCLUSION OF EVIDENCE.

The exclusion of evidence will not be reviewed on appeal where no statement was made or tendered as to what was proposed to be proved by the witness.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by James Salts, as administrator, against the Prudential Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff sues as administrator of his deceased daughter Pearl Salts, and on a policy of insurance issued to her by defendant, June 17, 1907. In the answer it is alleged the policy provided no claim would be paid by defendant unless the insured was in sound health at the date of the policy; on said date, for several months prior thereto, and on to her death the insured, Pearl Salts, had been and continued to be afflicted with tuberculosis of the lungs, or consumption, a fact which defendant did not know until after it had been furnished by plaintiff with proof of loss on or about March 10, 1908; that defendant would not have issued the policy had it known the real condition of the health of the insured; wherefore, in view of the premises the policy never became a binding obligation. The above defense is founded on a proviso in the policy itself, and a second one is founded on statements in the application made by the insured that the condition of her health when she applied for the policy was good, that she never had been seriously ill, or suffered from any physical infirmity, an habitual cough, spitting of blood, or consumption; which representations were made in the application in answer to questions, and the insured expressly warranted the statements to be true, and agreed they should form the basis of the contract for insurance. In truth the statements were all false, and Pearl Salts when she applied for the policy was in bad health, physically defective and infirm, suffering from spitting of blood, habitual cough, and consumption, had been seriously ill from consumption, spitting of blood, and habitual cough, and thereafter was so afflicted continuously. The policy was issued believing her representations were true, and otherwise would not have been issued. The said representations were not only false in point of fact, but the death of the insured was caused or contributed to by the malady with which she was afflicted at the time, to wit, consumption or tuberculosis. The policy expressly provided it should be void if any representation on which it was granted was not true; wherefore defendant prayed judgment and to be dismissed with costs. A general denial was filed in reply. Among the statements of the application were these: "What is the present condition of health? Good. * * * I hereby apply for insurance for the amount herein named, and I declare and warrant that the answers to the above questions are complete and true, and were written opposite the respective questions by me, or strictly in accordance with my directions. I agree that said answers, with this declaration, shall form the basis of a contract of insurance between me and the Prudential Insurance Company of America, and that the policy which may be granted by the company in pursuance of this application, shall be accepted subject to the conditions and agreements contained in such policy. I further agree that no obligation shall exist against said company on account of this application, although I may have paid premiums thereon, unless said company shall issue a policy in pursuance thereof, and the same is delivered to me. (Signature of applicant) Pearl Salts. I certify that I have this 10th day of June, 1907, personally seen and questioned the applicant herein named, and I recommend the company to accept the risk. C. E. Badgley, Agent."

The policy contained the following terms: "If the insured shall die within six months from the date hereof, one-half of the above benefit will be paid. After six months from its date the policy will be in force for the full benefit. * * * 1st. Preliminary Provision.—No claim will be paid on this policy in case of the death of the insured before the date hereof, nor unless on said date the insured was alive and in sound health. * * * 3d. Policy When Void.—This policy shall be void if there be in force upon the life of the insured an industrial policy previously issued by this company, unless the policy first issued contains an endorsement, signed by the president or the secretary, authorizing this policy to be in force at the same time; or if any of the representations upon which this policy is granted be not true; [italics ours]; or if the person insured is under twenty-two years of age next birthday," etc. "If for any cause this policy be or become void, all premiums paid hereon shall be forfeited to the company except as provided herein. * * * 9th. Incontestability.—If the insured shall die one or more years after the date hereof, and if all due premiums shall have been paid, and full proof of death given to the company within one year next after the death of the insured, this policy shall be incontestable."

The case was tried and the jury instructed on the theory that even if deceased was not in sound health at the date of the policy, or if she misrepresented the state of her health in the application for insurance, nevertheless plaintiff was entitled to a verdict unless she was not in sound health at the time the policy was issued, and the condition of her health at said time caused or contributed to her death, or some fact about her health or physical state was misrepresented in the application, and the fact misrepresented caused or contributed to her death. Defendant's main point is the insured had consumption as far back as the spring of 1907. Hence the interval of a week between the date of the application and of the policy is unimportant, as it is not claimed she contracted the disease in said interval.

Haff & Michaels and Woodruff & Mann, for appellant. Len Walker and W. D. Tatlow, for respondent.

GOODE, J. (after stating the facts as above).

The contention is put forward by defendant that the entire evidence showed beyond inference to the contrary the insured was not in sound health, but had tuberculosis of the lungs when the policy was granted, and showed, further, the statements made by her in her application for the policy, and warranted to be true, were not true. We will dismiss this contention by saying the record teems with evidence to prove the insured was not afflicted with tuberculosis, but died from excessive use of morphine, or a congested condition of the liver due to that habit. The doctor who attended her in her last illness so testified, and there is much other testimony to the same effect. There was also abundant evidence from which the jury might have found that when deceased applied for insurance and also when the policy was issued, she was not suffering from any disease, spitting of blood, cough, physical defect or infirmity, and never had been seriously sick. In other words, might have found the statements in the application were true. It is worthy of note in this connection, not as constituting a waiver of any right of the company, but as an item of evidence, that defendant's agent solicited deceased to take out a policy and defendant's regular examining physician who had examined risks for years, passed her as a good average risk, specifically stating her lungs were not diseased in the report of his examination sent to the company. We overrule the assignment of error based on the supposed conclusive proof the insured was not in sound health, but had consumption, when the policy was written, or similar proof the statements in her application were false; citing as an apposite authority ...