State ex rel. Business Men's Assurance Company v. Allen

• Decision Date: 11 February 1924
• Docket Number: 24921
• Citation: 259 S.W. 77,302 Mo. 525
• Parties: THE STATE ex rel. BUSINESS MEN'S ASSURANCE COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

259 S.W. 77

302 Mo. 525

THE STATE ex rel. BUSINESS MEN'S ASSURANCE COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals

No. 24921

Supreme Court of Missouri

February 11, 1924

Writ quashed.

Jones Hocker, Sullivan & Angert and Solon T. Gilmore for relator.

(1) The provision of the policy pleaded by the defendant is not in conflict with the requirements of Sec. 6157, R. S. 1919 Becker v. City, 94 Mo. 380; Becker v Rardin, 107 Mo. 119; Courtney v. Assn., 120 Mo.App. 117; Imboden v. Ins. Co., 31 Mo.App. 328. (2) The legislative disposition has been to favor rather than to discriminate against assessment companies. Hanford v Assn., 112 Mo. 505; Richards v. Ins. Co., 585 Mo.App. 588. (3) The right of an assessment insurance company to reduce indemnities under conditions specified in the policy will be enforced. Loesch v. Ins. Co., 176 Mo. 670; Angelrodt v. Ins. Co., 31 Mo. 593; Renn v. Supreme Lodge, 83 Mo.App. 442; U.S. Cooperage Co. v. Ins. Co., 188 Mo.App. 376; Armour Packing Co. v. Ins. Co., 67 Mo.App. 215; Kansas City Paper Box Co. v. Ins. Co., 100 Mo.App. 691. (4) Even if the statute expressly prohibited the use of the clause in question by an assessment insurance company, its use as a defense in this action could not be contested: (a) Under the policy, McConnell v. Assn., 154 Mo. 618; Williams v. Ins. Co., 189 Mo. 82; Cox v. Ins. Co., 154 Mo.App. 470. (b) Nor under the pleadings. State ex rel. v. McElhinney, 216 S.W. 524; Knoop v. Kelsey, 102 Mo. 298; Cousins v. Bowling, 100 Mo. 452; Davis v. Bond, 75 Mo.App. 32.

James J. O'Donohoe for respondents.

(1) That part of the opinion of respondents holding that the amount of insurance cannot be reduced by the stipulation relied on by relator does not contravene any decision of this court, for stipulations whittling away the amount of insurance in the event insured shall carry other insurance covering the same loss without written notice to defendant are void and of no binding effect, for the reason that same contravene Sec. 6952, R. S. 1909, now Sec. 6157, R. S. 1919, providing that every policy issued by any corporation doing business on the assessment plan "shall specify the exact sum of money which it promises to pay upon each contingency insured against." McFarland v. Acc. Assn., 124 Mo. 204. (2) Relator's suggestion to the effect that the policy in question is not on the assessment plan was imported into the case for the first time in its motion for rehearing. The question came too late for this court to consider it. State ex rel. Continental Ins. Co. v. Reynolds, 289 Mo. 382; State ex rel. U. Rys. Co. v. Allen, 240 S.W. 117; State ex rel. Ry. Co. v. Allen, 236 S.W. 868; State ex rel. Packing Co. v. Reynolds, 287 Mo. 697. Furthermore, the question is meritless for reasons, amongst which are: (a) The policy is on the assessment plan. (b) The statutes under other plans of insurance provide like requirements. Secs. 6178, 6405, 6139, R. S. 1919. Maxims cannot override statutes, for their "provisions become the supreme law of every policy," and they write into every policy "a mandate not to be abrogated in whole or hedged about or lopped off in detail, by policy provisions, nor to be contracted away otherwise than as prescribed by statute." Burridge v. Ins. Co., 211 Mo. 172; Gillen v. Ins. Co., 178 Mo.App. 96; Tinsley v. Ins. Co., 199 Mo.App. 707. Relator amended its articles of incorporation and its by-laws to enable it to transact business under Article II, instead of Article III, Chap. 50, R. S. 1919, but same does not modify or change the obligations of the policy in suit. Laws 1917, p. 313; Sec. 6168, R. S. 1919. Insured paid relator a premium for thirty-six hundred dollars insurance, and under the familiar maxim "that he who takes the benefit should bear the burden," relator ought to pay in full. Springfield Grocer Co. v. Walton, 95 Mo.App. 526. (3) That part of the opinion of respondent's ruling that the alleged misrepresentations are immaterial does not conflict with any decision of this court, for the misrepresentation alleged to have been made by insured in his application for the policy with respect to the amount of accident and health insurance he then had is immaterial, since the same neither caused nor contributed to cause insured's death. Sec. 6142, R. S. 1919; Jenkins v. Ins. Co., 171 Mo. 375; Kern v. Legion of Honor, 167 Mo. 471; Schuermann v. Ins. Co., 165 Mo. 641. Reducing the amount of insurance is as obnoxious to the misrepresentation statute as complete avoidance of the policy. Insurance Co. v. Stiewing, 173 Mo.App. 108; Burns v. Ins. Co., 141 Mo.App. 212. Defendant must plead that the misrepresentation was material. Christian v. Ins. Co., 143 Mo. 460. And that it would not have issued the policy had it known the facts. Summers v. Ins. Co., 90 Mo.App. 691; Richey v. Ins. Co., 104 Mo.App. 146; Caldwell v. Ins. Co., 245 S.W. 602. There is no distinction between warranties and misrepresentations. Keller v. Ins. Co., 198 Mo. 440. The policy in suit is governed and controlled by the provisions in Sec. 6142, R. S. 1919. Lavin v. Ins. Co., 101 Mo.App. 434. The misrepresentation statute is applicable to all policies issued by assessment companies whether domestic or foreign. Anderson v. Mo. Benefit Assn., 198 Mo.App. 97. (4) The stipulation invoked by relator has reference to insurance effected after the policy in question was issued. And since insured did not carry such insurance the stipulation is inapplicable. Matthews v. Modern Woodmen, 236 Mo. 326; DeMun Estate v. Ins. Co., 196 Mo.App. 1; Mitchell v. Accident Co., 179 Mo.App. 1; Roseberry v. Assn., 142 Mo.App. 552. It is not pertinent for the further reason that it is restricted to "insurance covering the same loss." Arneberg v. Con. Cas. Co., 190 N.W. 100. (5) Respondents did not fail to follow any decision of this court on any question involved in this case, and their opinion is not in conflict with any decision of this court. Authorities, supra.

OPINION

Graves, J.

Certiorari to St. Louis Court of Appeals. That court heard and determined, upon appeal from the circuit court, the case of Anna Melville, Respondent, v. Business Men's Assurance Company of America, Appellant. In an opinion filed the St. Louis Court of Appeals affirmed the judgment of the circuit court, by which latter judgment nisi Anna Melville had been awarded a judgment of over $ 3600 against the relator in the present action. The judgment and opinion of the St. Louis Court of Appeals relator seeks to have this court quash, because it is alleged to be in conflict with named decisions and opinions of this court.

The petition upon which our writ was awarded is quite long, but the salient features thereof can be shortly outlined. Anna Melville, wife of Charles Melville, deceased, sued the relator here in the St. Louis Circuit Court for $ 3600 and interest, alleged to be due her as the beneficiary in a policy issued to her deceased husband. The policy was for the sum of $ 3000, but it is conceded that under a rider attached thereto $ 600 additional insurance was given to such beneficiary. There was no claim in the lower court that the relator here (defendant there) was not liable. The only contest was to the amount of the liability. By answer the relator conceded liability to the amount of $ 1858, which was, as it alleged, half of the full amount provided for in the policy and rider attached thereto. In the answer filed by relator in the lower court, it was averred that there was a provision in the policy reading as follows:

"If the insured shall carry with another company, corporation, association, or society, other insurance covering the same loss without giving written notice to the association, then in that case the association shall be liable only for such portion of the indemnity promised as the said indemnity bears to the total amount of like indemnity in all policies covering such loss and for the return of such part of the premium paid as shall exceed the pro rata for the indemnity thus determined."

It was further averred that deceased had (without notice to relator) taken and carried other insurance in the sum of $ 3750, and that by reason of this fact the relator here (defendant below) was only liable for $ 1858 for which it confessed judgment. That portion of the answer which pleaded the foregoing excerpt from the policy as a defense to one-half of the liability, was stricken out on motion in the circuit court, and such action affirmed by the Court of Appeals. The propriety of that action is the sole question here, and this is to be judged here, in this proceeding, in the light of our cases, and as to whether or not such ruling conflicts with principles of law announced by this court. Details will be left to the opinion.

I. The policy was an accident policy, and no question was made as to the fact of the deceased having met his death by accidental means.

The relator was first incorporated as an assessment company, and the policy involved was issued when it was such a company. Later, it is averred in the answer, that it changed to a stock company with a level premium. The Court of Appeals says this in the opinion:

"The answer admits the allegations of the petition except as to the amount due plaintiff under the contract of insurance and except as to defendant's alleged vexatious refusal to pay the loss. It then alleges that defendant was originally incorporated under the laws of this State, under the name of 'Business Men's Accident Association of America,' as an insurance company on the assessment plan, and that 'during its existence as an assessment accident insurance company it issued to Charles Melville the policy of insurance described in plaintiff's petition;' that on or about March 1, 1920, defendan...