State v. Robertson

• Decision Date: 21 December 1916
• Docket Number: No. 19631.,19631.
• Citation: 191 S.W. 989
• Parties: STATE ex rel. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. ROBERTSON et al., Judges.
• Court: Missouri Supreme Court

191 S.W. 989

STATE ex rel. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. ROBERTSON et al., Judges.

No. 19631.

Supreme Court of Missouri. In Banc.

December 21, 1916.

Motion for Rehearing Denied February 13, 1917.

Certiorari to Springfield Court of Appeals.

Original proceeding for writ of certiorari by the State, on the relation of the Equitable Life Assurance Society of the United States, against Hon. W. R. Robertson and others, Judges of the Springfield Court of Appeals, to review record and judgment of the Springfield Court of Appeals. Judgment of Court of Appeals quashed, with direction to proceed with case.

This is an original proceeding brought by relator in this court, asking for a writ of certiorari to bring up for review the record and judgment of the Springfield Court of Appeals, rendered in a suit on an alleged contract of insurance, in favor of the plaintiffs in the case of Hattie E. Kempf et al. v. Equitable Life Assurance Society of the United States, appealed to that court from the circuit court of Greene county. The ground assigned for the writ is that the judgment of the Court of Appeals is contrary to and in conflict with the last rulings of this court regarding the matters therein adjudicated—citing the cases.

The facts of the case are few and simple, and are in substance as follows: On June 12, 1913, Joseph E. Kempf made application to the relator here for an ordinary life policy of insurance on his life for the sum of $5,000, payable to his wife and daughter. The application for the insurance mentioned was in the usual form of such documents, being a printed blank, with printed questions to which answers were to be filled out by the applicant. It names the plaintiffs in the original suit as the beneficiaries.

In answer to a question contained in the application regarding the use of intoxicating liquors, Kempf said that he used from "one to two ounces before breakfast" each day. The premium named in this application was $111.25, payable semiannually in advance. The application also contained, among other things, the following:

"I hereby agree that the policy issued hereon shall not take effect until the first premium has been paid, during my good health. * * * I have paid to M. A. Nelson $111.25 to cover the first semiannual premium on the policy applied for, in accordance with provisions of the receipt of date and number corresponding to this application, which I hereby accept and agree to the conditions thereof."

After the application for the insurance had been executed by Kempf, he gave M. A. Nelson, the agent of the relator at Springfield, Mo., his note for $111.25, in payment of the first semiannual premium on the policy he had applied for; and thereupon Nelson signed and delivered to Kempf the following receipt.

"Received of Joseph E. Kempf one hundred eleven and 25/100 dollars, the first semiannual premium on proposed insurance for $5,000.00 on the life of self for which the above-mentioned application is this day made to the Equitable Life Assurance Society of the United States. Insurance subject to the terms and conditions of the policy; contract shall take effect as of the date of this receipt, provided the applicant is on this date in the opinion of the society's authorized officers in New York, an insurable risk under its rules and the application is otherwise acceptable on the plan and for the amount applied for; otherwise the payment evidenced by this receipt shall be returned on demand and the surrender of this receipt.

                                        "M. A. Nelson, Agent
                  "Dated at Springfield, Mo., 6-12-13."
                

Upon the receipt of the application and the execution of this receipt, the application was forwarded to the home office of the company, relator, in the city of New York. In New York City the following things were done as to, and entries made on, this application:

(A) Entries on the application blank: "June 17th, 1913. Await inspection (habits) A. W. B." "June 23, 1913. Approved 5000. Age plus 45% A. L. S." "June 27, 1913. Issue O. L. Age 47 plus 5. P. H. Send release. E. H." It was agreed that the letters "A. W. B." refer to A. W. Billings, one of the medical directors of the relator at the home office in New York; "A. L. S." refer to Dr. A. L. Sherrill, also one of relator's medical directors of New York; that "O. L." means ordinary life policy; "P. H." means personal history; and that "plus 45%" and "plus 5" mean that five years was added to the real age of Kempf, at the New York office, and the premium rate thereby increased from $111.25 to $137.55, payable semiannually. It was shown, also, that plus 45 per cent. means five years added to the age of the applicant; that the applicant was rated up, that is, five years were added to his real age and the premium rate was increased accordingly by the home office; and with those changes the application for the insurance was approved and the policy ordered released from the St. Louis office, and to be delivered to the insured. But prior to the date on which the policy was sent to Avery, another agent of the company, at St. Louis, the company made inquiry as to the habits of Kempf, and Dr. F. B. Fuson, a local physician, made an examination and reported that he found him in good health, and that he looked no older than his actual age; and that he was a first-class risk, and recommended him for insurance.

E. T. Chester, of Kansas City, Mo., reported: Thought (Kempf) to be a man of little or no means; slow in paying current bills, and drank to excess at times, but not often. A. J. Howard, a banker at Billings, Mo., reported that he knew nothing of Kempf's drinking, and that Kempf had lived in Billings two years. After the reception of these reports, the company issued the policy, with the changes and conditions mentioned, and sent the same to Avery, at St. Louis, as stated.

(B) On June 24, 1913, the society issued in the city of New York a policy on the plan and for the amount applied for, but as to premiums the policy so issued provided:

"This insurance is granted in consideration of the payment in advance of $137.55 and of the payment semiannually thereafter of a like sum on each 12th day of December and June until the death of the insured."

This policy was sent by the company to C. M. Avery, of St. Louis, Mo., and accompanying it was a letter dated at New York, June 23, 1913, which states:

"Policy on the life of Mr. Joseph E. Kempf, if the risk be accepted, will be issued subject to the conditions checked below."

Then follows, as part of the letter, these notations by check marks: (a) Age rated up five years. (b) Account of personal history. (c) A settlement has been taken in this case and conditional receipt issued if policy issued is not acceptable, return settlement promptly and take up receipt without fail.

This policy, accompanied by this letter, reached Mr. Avery in St. Louis on the morning of the 26th of June, and on the same morning Mr. Nelson wired Mr. Billheimer, the agent in St. Louis, of Mr. Kempf's death from suicide. It is agreed that Kempf died on the 23d or 24th of June, 1913, and the Court of Appeals in its opinion says, "There is little doubt but that he committed suicide." Upon the receipt of the notice of Kempf's death, the company, the relator here, ordered the policy canceled and premium note returned. The policy was never delivered to Kempf, nor to any one for him or for the beneficiaries named in the application and policy.

Upon these facts, the jury in the suit on the contract found for the plaintiffs, and the trial court rendered judgment accordingly, and thereupon the defendant appealed the cause to the Springfield Court of Appeals; and, as previously stated, that court affirmed the judgment of the circuit court; and thereafter the defendant, the relator here, applied to this court for a writ of certiorari, as before stated.

Alexander & Green, of New York City, and Barbour & McDavid, of Springfield, for appellant. J. T. Neville, of Springfield, W. T. Lampkin, of Kansas City, and J. T. White, of Jefferson City,...