Simpson v. Metropolitan Life Ins. Co.

• Decision Date: 08 January 1924
• Docket Number: No. 18080.,18080.
• Citation: 263 S.W. 521
• Parties: SIMPSON v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

263 S.W. 521

SIMPSON v. METROPOLITAN LIFE INS. CO.

No. 18080.

St. Louis Court of Appeals. Missouri.

January 8, 1924.

Rehearing Denied June 24, 1924.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Hattie Simpson against the Metropolitan Life Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

James J. O'Donohoe, of St. Louis, for appellant.

Fordce. Holliday & White, of St. Louis, and Wm. J. Tully, of New York City, for respondent.

DAUES, J.

This is an action on a life insurance policy in the sum of $1,000 issued August 2, 1920, on the life of Roy E. Simpson. The insured died December 24, 1920, and this suit was brought by plaintiff as beneficiary under the policy. The case was tried in the circuit court of the city of St. Louis before the court and a jury; there was a verdict and judgment for defendant, and plaintiff appeals.

The petition is in conventional form.

Defendant's answer, after a general denial, alleges by way of affirmative defense that Roy E. Simpson, on whose life the policy was issued, made misrepresentations concerning his health in his application for the insurance. These allegations will be more fully discussed later.

Plaintiff's reply is in the nature of a general denial.

The answer relied upon by defendant, in so far as same pleads misrepresentations, is to the effect:

That the insured made application to the defendant for a policy of insurance, and that in said application the insured stated that he was in sound health; "that he had not been suffering from the disease of diabetes; that he had not been attended by a physician and had not been under the care of any physician within two years before the date of said application; that he had not been under treatment in any dispensary or hospital, or an inmate of any institution; that he had never met with any serious personal injury nor had he ever been seriously ill; that thereafter said application, duly signed by said Roy E. Simpson, was forwarded to the home office of the defendant company, and that defendant, relying upon the truthfulness of the statements, representations, land answers to the questions propounded to the said Roy E. Simpson by the said medical examiner of the said defendant company, and believing that said statements, representations, and answers were true and correct, did issue its policy of insurance * * *" whereby Simpson's life was insured for $1,000 in favor of Hattie Simpson, the plaintiff herein.

It is then further alleged:

That "said policy of insurance was obtained by misrepresentations which were material, in that said Roy E. Simpson, at the time he made said application and was examined by the said medical examiner, was then suffering with the disease of diabetes, and had suffered from said disease for a long time prior thereto; that said Roy E. Simpson had been under the care of a physician, and that said Roy E. Simpson was not in sound health on the date of the said application."

The answer then states that, had it known and been aware of the falsity and untruthfulnes of said statements, representations, and answers to the questions made to said medical examiner, it would not have issued its policy of insurance, as aforesaid. It is then averred that the insured died from diabetes, and that he was suffering from said disease at the time the application for insurance was made.

As far as the evidence is concerned, plaintiff made a prima fade case by offering the policy of insurance in evidence, and showing that the insured died on December 24, 1920. The defendant's evidence tended to prove that at and prior to the time the insured made application for the policy of insurance sued upon he was suffering from diabetes. There was cogent evidence from physicians and others that the insured was suffering from diabetes in February, 1920, and as late as July 20, 1920, and that he had been treated for same by physicians. There was evidence tending to show that the insured during that period had received sick benefits from a mutual, benefit association for disability caused by diabetes.

There was rebuttal evidence adduced by plaintiff tending to show that the insured was in good health at the time he made the application for the policy. This evidence came from lay witnesses who testified that the insured appeared to be in good health at that time.

Plaintiff, appellant here, urges a reversal of this judgment, placing her chief reliance upon an assignment of error which reaches to the sufficiency of the answer as pleading an affirmative defense, and asserts that there was error in defendant's given instruction No. 1 as modified, because same fails to require the jury to find that the alleged misrepresentations were fraudulently or corruptly made, and that the instruction assumes the fact that the insured had diabetes, and that it fails to require the jury to find that the company would not have issued the policy if it had known the real state of facts respecting which the alleged misrepresentations were made.

Before discussing the answer, it should be pointed out that the insurance policy contains the following provision:

"All statements made by the insured shall, in the absence of fraud, be deemed representations, and not warranties, and no such statement shall avoid this policy or be used in defense of a claim hereunder, unless it is contained in the written application therefor and a copy of such application is securely attached to this policy when issued."

The answer contains no averment concerning the misrepresentations of the insured beyond that such answers were false and untrue. It is not alleged that these untrue answers were willfully made by the insured for the purpose of defrauding the company, either in the words just given or in any language whatever conveying such idea. Indeed, the word "fraud" is not used in the answer, nor is any word or words used charging fraud. It is true, it is alleged the representations were untrue, and that the representations were made with respect to a material matter; but there is no averment that such statements were willfully and knowingly made for a fraudulent or corrupt motive by the insured. Respondent does not seek to avoid this difficulty by asking us to construe the answer with favorable intendmeats to comprehend such allegation. The defense to this complaint is that under the misrepresentation statute (Revised Statutes Missouri 1919, § 6142) it does not matter whether such misrepresentations were made in bad faith or for the purpose of deceiving the insurer or not, just so the representations relate to a material matter touching the risk. And respondent's learned counsel rely upon the case of Kern v. Supreme Council, Am. Legion of Honor, 167 Mo. 471, 67 S. W. 252, and especially upon the language of that opinion at page 489 thereof, and also the case of Lewis v. N. Y. Life Ins. Co., 201 Mo. App. 48, 209 S. W. 625, loc. cit. 631, 632.

We must have in mind that under the terms of the policy at bar a distinction is drawn between innocent and fraudulent representations, fob it is provided that, in the absence of fraud, the statements made by the insured shall be deemed representations, and not warranties, and that no such statement shall avoid the policy unless it is contained in the written application therefor, etc. Therefore warranties, with the exception provided, are abolished by the policy in the instant case.

That the answer does not plead a...