Salts v. Prudential Ins. Company

• Decision Date: 08 June 1909
• Citation: 120 S.W. 714,140 Mo.App. 142
• Parties: JAMES SALTS, etc., Respondent, v. PRUDENTIAL INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

120 S.W. 714

140 Mo.App. 142

JAMES SALTS, etc., Respondent, v. PRUDENTIAL INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 8, 1909

Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.

AFFIRMED.

Judgment affirmed.

Haff & Michaels and Woodruff & Mann for appellant.

(1) The provision in the policy that no claim would be paid thereon unless the insured were in sound health on the date thereof is a valid provision and is not affected by section 7890, Revised Statutes 1899. Welch v. Guar. F. L. Soc., 81 Mo.App. 38; McAndiless v. Insurance Co., 45 Mo.App 584; Insurance Co. v. Howle, 62 Ohio St. 204; Barker v. Insurance Co., 188 Mass. 542; Packard v. Insurance Co., 72 N.H. 1; Carmichael v. Ins Co., 101 N.Y.S. 602; Insurance Co. v. Willis, 76 N.E. 506; Insurance Co. v. Betz, 99 S.W. 1140; Stringham v. Insurance Co., 44 Ore. 447; Langstaff v. Insurance Co., 69 N.J. L. 54. (2) Knowledge by the insured that his health is unsound is immaterial, as is also the question whether the ailment which rendered his health unsound at the date of the policy caused or contributed to his death. Murphy v. Insurance Co., 205 Pa. 452; Kern v. Legion of Honor, 167 Mo. 487; Thompson v. Insurance Co., 13 N.D. 444; Insurance Co. v. Howle, 62 Ohio St. 204; Barker v. Insurance Co., 188 Mass. 542; Insurance Co. v Betz, 99 S.W. 1140; Summers v. Insurance Co., 90 Mo.App. 699. (3) The burden was on plaintiff to prove that deceased was in sound health on the date of the policy. R. S. 1899, sec. 634; St. Louis v. Kruikshank, 16 Mo.App. 499; Reese v. Life Assn., 111 Ga. 482; Ormond v. Life Assn., 96 N.C. 158; Oliver v. Insurance Co. (Va.), 33 S.E. 536; Insurance Co. v. Betz, 99 S.W. 1140; Kipp v. Insurance Co., 41 App.Div. (N.Y.) 300; Thompson v. Insurance Co., 13 N.D. 444. (4) Plaintiff's testimony that Pearl Salts was in "good health" was a mere conclusion and not sufficient to meet the burden cast upon him. 17 Cyc. 87; Insurance Co. v. Betz, supra; Kipp v. Insurance Co. (N.Y.), 41 A.D. 300. (5) This court should reverse the judgment of the lower court and enter judgment here for the defendant. R. S. 1899, sec. 866; Kipp v. Insurance Co., supra; Insurance Co. v. Betz, supra; Friesz v. Fallon, 24 Mo.App. 439. (6) Upon inquiry as to whether or not, in fact, insured was in good health on the date of the policy, the report of defendant's medical inspector was not binding on defendant and does not avail the plaintiff. Packard v. Insurance Co., 72 N.H. 1; Gallant v. Insurance Co., 167 Mass. 79; Thompson v. Ins. Co., 13 N.D. 444. (7) Plaintiff, by his directions in the proofs of death to "see doctors' certificates" as to cause of death, and by his bringing suit, and by testifying as to deceased's condition of health, waived the privilege of the statute and rendered competent Dr. Bruton's certificate and his testimony. State v. Collins, 67 Mo. 380; Satterlee v. Bliss, 36 Cal. 489; Cramer v. Hunt, 154 Mo. 112; Gallant, v. Insurance Co., 167 Mass. 79; Proppe v. Insurance Co. (N.Y.), 13 Misc. 266; Chinnery v. Insurance Co., 15 App.Div. (N.Y.) 515; Bentz v. N.W. Aid Ass'n, 40 Minn. 202; Keller v. Insurance Co., 95 Mo.App. 94; Thompson v. Ish, 99 Mo. 175; Highfill v. Railroad, 93 Mo.App. 223; Webb v. Railroad, 89 Mo.App. 611; Insurance Co. v. Brubaker (Kan.), 96 P. 65; Linz v. Insurance Co., 8 Mo.App. 363; Gartside v. Insurance Co., 76 Mo. 446; Weitz v. Railroad, 53 Mo.App. 43; Howard v. Insurance Co., 18 Misc. 74; Insurance Co. v. Ward, 140 U.S. 88; Insurance Co. v. Newton, 22 Wall. 32; Boylan v. Insurance Co., 18 Misc. 444; Hanna v. Insurance Co., 150 N.Y. 526; Kipp v. Insurance Co., 41 A.D. 298; Insurance Co. v. Milick, 65 F. 178.

Len Walker and W. D. Tatlow for respondent.

(1) The policy contains two warranties in the nature of a condition precedent, referring to the health of the deceased, identical in legal effect with the sole exception that one of the warranties, to-wit, the first, applies to the condition of her health at the date of the issuance of the policy, and the other at the date of the application. This is the fixed consistent and settled holding of the Supreme Court of this State, and is no longer a debatable question. Loehner v. Insurance Co., 17 Mo. 247; Mers v. Insurance Co., 68 Mo. 127; Aloe v. Insurance Co., 147 Mo. 531. (2) These warranties relating to the condition of her health, although contractual in form, are by the repeated rulings of the Supreme Court of this State, by section 7890, Revised Statutes 1899, transformed into mere representations which the defendant must not only show are untrue, but that the subject-matter thereof contributed to or produced the death, and unless it be so shown to the satisfaction of the jury that such representations although false, constitute no defense. Jacobs v. Insurance Co., 146 Mo. 523; Deem v. Insurance Co., 86 Mo.App. 459; Schuerman v. Insurance Co., 165 Mo. 641; Jenkins v. Insurance Co., 171 Mo. 375; Williams v. Insurance Co., 189 Mo. 71; Keller v. Insurance Co., 198 Mo. 440; Insurance Co. v. Riggs, 203 U.S. 241. (3) Dr. Bruton was incompetent as a witness under the statute of this State to testify concerning any information which he acquired as a physician or a surgeon, from the deceased, while attending her in a professional capacity, and which was necessary to enable him to prescribe for her as a physician. R. S. 1899, sec. 4659. (4) The court did not err in refusing to permit the following question to be answered: "Q. State, from your constant observation now there in that store, whether Pearl Salts was or was not in sound health in the month of June, 1907?" Reed v. Insurance Co., 58 Mo. 425. (5) There being no offer of proof under the repeated rulings of the courts of this State, the cause cannot be reversed for failure to permit him to answer this question, even if it was a proper question. Wilson v. Board, 63 Mo. 137; Bank v. Aull, 80 Mo. 199; Nelson v. Lock, 59 Mo.App. 637; Jackson v. Hardin, 83 Mo. 187; St. Louis v. Babcock, 156 Mo. 148; Krauberger v. Roiter, 91 Mo. 408; Ruschenberger v. Railroad, 161 Mo. 70; State v. Marlin, 124 Mo. 523; Berthold v. O'Hara, 121 Mo. 98.

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, a 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...