Schuler v. Metropolitan Life Insurance Company
| Decision Date | 04 May 1915 |
| Citation | 176 S.W. 274,191 Mo.App. 52 |
| Parties | GUSTAVE SCHULER, Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted April 7, 1915.
Appeal from St. Louis City Circuit Court.--Hon. Thomas C. Hennings Judge.
AFFIRMED (conditionally).
Nathan Frank and Louis B. Sher for appellant.
(1) The court erred in admitting sec. 58, vol. 3 of the Laws of the State of New York requiring the application to be endorsed upon or attached to the policy when issued. The policy in suit was issued and delivered in Missouri and therefore the laws of this State govern. Whittaker v. Insurance Co., 138 Mo.App. 664; Haven v. Insurance Co., 149 Mo.App. 291. (2) It was error for the court not to allow Dr. Haase, the examining physician, to answer the following questions: "I will ask you to state to the jury whether or not Mrs. Schuler mentioned the name of Dr. Blank to you at all?" This was a vital issue in the case and the plaintiff and witness Lula Price were permitted to testify to what was told the examining physician at the time of his making his examination of the insured. (3) It was error for the court to allow the plaintiff to testify that Pumpelley the soliciting agent, had told plaintiff that Mrs. Schuler was an unsafe risk and had asked the said plaintiff to have the policy changed from a twenty-year life to a twenty-year endowment, and had written him a letter to that effect, without the witness producing said letter. There was evidence by both parties in the case that the said agent who procured the application for defendant was dead. Crosno v. Bowser Milling Co., 106 Mo.App. 236; Bank v. Thayer, 184 Mo. 61; Williams v. Edwards, 94 Mo. 447; McCormick Harvesting Machine Co. v. Heath, 65 Mo.App. 461; Nelson v. Railroad, 66 Mo.App. 647. (4) The insured is bound by her statements in the application in the absence of a showing of fraud or deceit on the part of the agent writing the application. And as there was no allegation in the reply that the said application was procured by fraud, it was error for the court to allow the witnesses to testify to what they had told the examining physician. Holloway v. Insurance Co., 48 Mo.App. 5; School District v. Insurance Co., 61 Mo.App. 600; Lamar v. Insurance Co., 51 Mo.App. 447. (5) The court erred in modifying the instructions requested by the defendant by adding to each of the same "that the verdict should be for plaintiff unless they found under the instructions in the case that the defendant waived the truth of the representations made by the insured." (6) The court erred in refusing to give the following instruction: "The jury are instructed that by the term vexatious as used in these instructions is meant action not taken in good faith and with probable cause, but rather in an effort to embarrass or annoy." It is the duty of the court to explain to the jury the meaning of legal or technical terms occurring in an instruction. Greene v. Railroad, 119 Ky. 862, 84 S.W. 1154; Holmes v. Clisby, 121 Ga. 241. Where there is a request to define or explain technical terms in an instruction, it is error to refuse such request. Quirk v. St. Louis U. El. Co., 126 Mo. 279; Johnson v. Railroad, 90 Mo. 340; Rattan v. Central El. Co., 120 Mo.App. 270. (7) The court erred in giving instruction No.--at the request of plaintiff. Knowledge to every agent of a corporation is not legal knowledge to said corporation. There must be an authority shown for the agent to take the application, fill up the same and do all things which may be needful in procuring it, and that the knowledge so acquired by the agent must be during his agency and referring to a transaction within the scope of said agency. Shotliff v. Modern Woodmen of America, 100 Mo.App. 152; Hilburn v. Insurance Co., 140 Mo.App. 368; Thompson v. Traders Ins. Co., 169 Mo. 24. The instruction is further erroneous in that it assumes in the latter part thereof that the company issued the policy with knowledge of the physical condition of the insured with reference to hemorrhages or pulmonary diseases. And the last part thereof which reads that "it thereby waives the defense of said an-answer being true" is vague and meaningless, and only confused the jury, as nothing was said in that instruction or any previous instruction about any answer having been given. (8) The court erred in giving instruction No.--, at the request of plaintiff. Said instruction is a comment upon the evidence and should not have been given as no witness was impeached by evidence of his bad character for truth or veracity, or by showing that he had made statements out of court inconsistent with his evidence. Bank v. Maxey, 62 Mo. 74; Flynn v. Transit Co., 113 Mo.App. 185, 197; State v. Bischler, 103 Mo. 203, 210-211. (9) The verdict of the jury is not responsive to the instructions of the court and is excessive. The jury were instructed to allow interest on both counts of the petition, commencing with the 10th of September, 1909, but in their verdict allowed the plaintiff interest from the 24th day of July, 1909. (10) The allowance of attorney's fees in this case was excessive. In any event, there should have been no allowance of attorney's fees on the second count of the petition, as there was no evidence whatever of the services performed by the attorney for plaintiff in that behalf, his only statement being that the services rendered under the second count would be reasonably worth $ 50.
S. C. Rogers for respondent.
(1) Under the facts and circumstances in this case it cannot be disputed but that the judgment is for the right party. The court should not have permitted appellant to introduce in evidence the application, because it was not attached to the policy as required by the laws of Missouri and the laws of New York. Sec. 6978, R. S. 1909; Coscarella v. Met. Life Ins. Co., 175 Mo.App. 130; Con. Laws of N. Y., vol. 3 p. 1714, sec. 58; Herb v. Kittaning Ins. Co., 138 Pa. 175, 180; Mutual Life Ins. Co. v. Dingley, etc., 49 L.R.A. 132, 138; 100 F. 408; Becker v. Colonial Life Ins. Co., 153 A. D. (N. Y.) 382; Coscarella v. Metropolitan Life Ins. Co., 175 Mo.App. 130, 139; Jones v. Prudential Ins. Co., 173 Mo.App. 17; Buchholz v. Metropolitan Life Ins. Co., 177 Mo.App. 692-3; S. C. 138, N.Y.S. 491; Murphy v. Col. Life Ins. Co., 83 Misc. 475; Morris v. Life Ass. Co., 183 Pa. 563, 573; Marcus v. Heralds of Liberty, 241 Pa. 431; Paulhamus v. Security Life Assn., 163 F. 554; Ellis v. Met. Life Ins. Co., 228 Pa. 230; Keller v. Home Life Ins. Co., 198 Mo. 460. The court could as a matter of law declare appellant's liability. Manning v. Ins. Co., 176 Mo.App. 678, 689. The court did not err in admitting the New York laws requiring the application to be endorsed upon or attached to the policy when issued. Connors v. Life Annuity Association, 171 Mo.App. 364, 369; Haven v. Home Ins. Co., 149 Mo.App. 291, 294; Lange v. New York Life Ins. Co., 254 Mo. 488, 503; Craven v. New York Life Ins. Co., 148 Mo. 583, 607. Amended application not part of contract if issued after the policy of insurance. 19 Cyc. 602; Michigan F. & M. Ins. Co. v. Wich, 8 Colo.App. 409; 46 P. 687. (2) The court did not err in refusing to permit Dr. Haase to answer the questions referred to in appellant's brief under Points and Authorities, point 2. Sec. 6354, R. S. 1909; Taylor v. George, 176 Mo.App. 215; Bone v. Friday, 180 Mo.App. 577. The medical examiner is the agent of the company. Coolidge v. Charter Oak Life Ins. Co., 1 Mo.App. 109, 113. (3) It was not error for the court to allow plaintiff to testify that Pumpelley, the soliciting agent who was dead, had told plaintiff that assured was an unsafe risk and he had been instructed to change the policy from a twenty-year life to a twenty-year endowment. Sec. 6354, R. S. 1909. The testimony admitted over objection was with reference to a collateral matter, and was but carrying out the instruction of appellant company. It was cumulative only and harmless. Stahlman v. United Railways Company, 166 S.W. 312; Drew v. Railroad, 129 Mo.App. 459, 466; Sang v. City of St. Louis, 171 S.W. 347, 350; Birdsall v. Coon, 157 Mo.App. 439. (4) The assignment of error in appellant's brief, point 4, is not well taken. Any statement assured may have made in the application was a representation and not a warranty. Sec. 6937, R. S. 1909; Connor v. Life & Annuity Ass'n, 171 Mo.App. 364, 369; Coscarella v. Metropolitan Life Ins. Co., 175 Mo.App. 130. Evidence was admitted and properly so, showing that the examining physician, who was the agent of appellant, was informed as to her exact condition. Schwartz v. Royal Neighbors of America, 108 P. 51; 25 Cyc. 933. As to this evidence and this question, it was properly submitted to the jury as has been done in identical cases many times before and approved. Roedel v. Jno. Hancock Mutual Life Ins. Co., 176 Mo.App. 584; Keller v. Home Life Ins. Co., 198 Mo. 440; Birdsall v. Coon, 157 Mo.App. 439; Wallace v. Prudential Ins. Co., 174 Mo.App. 110, 117-8-9; Tait v. Locke, 130 Mo.App. 273, 283. (5) Answering appellant's point 5, of its brief, we desire to say the court did not err in modifying the instructions requested by defendant. This was one of the defenses on the part of respondent to appellant's affirmative defense and it would have been error to have omitted it. Scarritt Estate v. Casualty Company of America, 166 Mo.App. 570; Shotliff v. Modern Woodmen of America, 100 Mo.App. 138, 152; Nichols v. Insurance Co., 170 Mo.App. 437,...
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