Templeton v. Standard Life Ins. Co.
| Decision Date | 20 May 1940 |
| Citation | 140 S.W.2d 726,235 Mo.App. 424 |
| Parties | VERGEL TEMPLETON, RESPONDENT, v. STANDARD LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Osage County.--Hon. R. A. Breuer Judge.
Judgment affirmed.
H. P Lauf and John O. Bond for appellant.
(1) Where there is fraud and collusion between the agent of the insurer and the applicant in concealing applicant's state of health and false answers are written in application with the knowledge of the insured and with the knowledge of the plaintiff-beneficiary, the knowledge of the agent is not imputable to the insurer. McGee v. Capital Mutual Ass'n of Jefferson City, 116 S.W.2d 204; Gordon v. Royal Neighbors of America, 90 S.W.2d 205; Emery v. N. Y. Life, 316 Mo. 1292, 295 S.W. 573; New York Life Insurance Co. v. Ince, 27 S.W.2d 476, 479. (2) Where the plaintiff-beneficiary by his own evidence showed that he had conspired with insurer's agent to get a policy of insurance on an applicant who had undergone a Caesarean operation and who later died from a second one, the plaintiff's instruction should not have limited the innocence of the false answers in application to the applicant in imputing the agent's knowledge to the insurer but should have also required that the plaintiff-beneficiary be innocent that agent placed false answers in the application. Emery v. N. Y. Life, 295 S.W. 573; McGee v. Capital Mutual Ass'n, 116 S.W.2d 204. (3) Where the plaintiff by his own evidence conclusively shows that insured died of a malady she had prior to taking out the policy and about which she in her application showed false answers and concealment, plaintiff is not entitled to instruction that in order to find for defendant insured must have died from the cause misrepresented and about which false answers were given in her application. Emery v. N. Y. Life, 295 S.W. 573; Zeilman v. Central Mut. Ins. Ass'n, 22 S.W.2d 88, 91.
Irwin Bushman & Buchanan for respondent.
(1) (a) The defendant's demurrer to the evidence was properly ruled because the evidence adduced presented a question of fact whether or not the applicant gave true answers to the question whether or not she had had a surgical operation, and if so whether or not she had knowledge that the insurer's agent did not enter the correct answers in the application. The question whether or not the defendant company issued the policy as a result of fraud practiced upon it by its agent and the applicant was a question for the jury. Byrne v. Prudential Ins. Co. of America (Mo. App.), 79 S.W.2d 789, 791; Byrne v. Prudential Ins. Co. of America (Mo.), 88 S.W.2d 344, 349; Coleman v. Central Mut. Ins. Assn., 52 S.W.2d 22, 23; Yancey v. Central Mut. Ins. Assn. (Mo. App.), 77 S.W.2d 149, 157. (2) (b) Aside from the question of knowledge on the part of the insured, the pleadings and the evidence presented the issue whether or not the misrepresentation made by the insured, if any, contributed to her death, and this under the statute (Sec. 5732, R. S. Mo. 1929, Mo. Stat. Ann. page 4373) is a question for the jury. And regardless of the statute, the pleadings and the evidence on this question presented an issue of fact for the jury. Aetna Life Ins. Co. v. Daniel (Mo.), 42 S.W.2d 584, 587; State ex rel. v. Allen (Mo.), 267 S.W. 832, 835; Schreiber v. Central Mut. Ins. Assn., 108 S.W.2d 1052, 1057; Otto v. Metropolitan Life Ins. Co. (Mo. App.), 72 S.W.2d 811, 815; Bruck v. John Hancock Life Ins. Co., 194 Mo.App. 529, 537; Keller v. Home Life Ins. Co., 198 Mo. 440, 463. (2) (a) Plaintiff's Instruction 1 fairly submitted plaintiff's theory of the question, whether or not the plaintiff had knowledge that answers were inserted in the application different from those given by her to the agent. It was not an instruction covering the whole case and directing a verdict for the plaintiff; and if the instruction did not go far enough in defendant's favor it should have asked for others presenting the theories of law contended for by it. Moore v. Mo. P. Ry. Co., 136 Mo.App. 210, 215; Maloney v. Boatmen's Bank, 288 Mo. 435, 458; Hoover v. Ry. Co. (Mo.), 227 S.W. 77, 79; First Natl. Bank v. Ragsdale, 171 Mo. 168, 186. (3) (b) Beside, defendant in its Instructions A and D presented the same issue and same theory to the jury. Its instructions in that respect were in harmony with Instructions 1 and 2 given in behalf of the plaintiff. The law is that a party cannot complain of an instruction in harmony with one requested by him. Thorpe v. Mo. P. Ry. Co., 89 Mo. 650, 666; Harper v. Morse, 114 Mo. 317, 321; Hazel v. Bank of Tipton, 95 Mo. 60, 66; Simpson v. Wells, 292 Mo. 301, 328; Long v. Mo. P. Ry. Co., 208 Mo. 458, 475.
This is a suit on a policy of life insurance, issued November 28, 1931, to Velda Templeton, the wife of plaintiff who was named as beneficiary therein. The suit was instituted in the Circuit Court of Cole County, and upon a change of venue was tried in the Circuit Court of Osage County. The petition is in conventional form.
The answer raises the sole defense that the policy is void for the reason that the insured in her application for insurance "did fraudulently and falsely state . . . that she had never had any surgical operation," and that her last illness, which was due to childbirth, lasted for only fifteen days, when in fact approximately six months prior to the time insured made said application for insurance she "had undergone a Caesarean operation on account of placenta previa with hemorrhage, and that the nature of the operation was the removal of an unborn baby by cutting into her abdominal cavity." The answer alleges that the insured's statement that she had not been operated upon was a material representation, in that the operation had six months prior to the issuance of the policy was a contributing cause of her death in December, 1935. Prior to suit, defendant denied liability and tendered to plaintiff all of the assessments paid on the policy, which tender plaintiff refused to accept.
Plaintiff filed reply, wherein he denied that the insured had made any false statements at the time her application for insurance was made, and alleged that the insured had, at that time, stated to defendant's agent that she had had a Caesarean operation, and the length of her confinement on account thereof, and that at the time the agent filled out the application he had full knowledge of these facts; that the insured signed said application without knowing that the agent had misstated the answers and information given by the insured; that the defendant had full knowledge of the actual facts with respect to said operation prior to the issuance of the policy, and is therefore estopped from asserting that the insured made any misrepresentation in respect thereto; that said Caesarean operation did not contribute in any way to the death of the insured.
Upon a trial of the case on July 25, 1939, the jury returned a verdict in favor of the plaintiff for the face amount of the policy, plus accrued interest thereon, aggregating $ 1246.47. Following an adverse ruling on its motion for new trial, defendant duly prosecuted this appeal. We shall continue to refer to appellant as defendant, and to respondent as plaintiff.
The essential facts disclosed by the record are as follows: The policy was issued November 28, 1931. Prior thereto, and on May 31, 1931, the insured underwent a Caesarean operation. In this operation an incision six or seven inches long was made in the forward or anterior portion of the uterus, through which the child was taken. The insured made an "uneventful recovery." When her physician "checked her up" before finally discharging her, she stated to him she was feeling better than she had for years. The portion of the application which furnishes the basis for the misrepresentation charged in the answer is as follows:
Defendant's agent who took the application for the policy of insurance here involved was not called as a witness, and the only testimony as to what transpired in connection with the application is that of the plaintiff. The plaintiff testified that Lyford Robbins, an agent for the defendant company, came to his home in the early evening in November, 1931, and introduced the subject of insurance, stating that he had previously seen plaintiff's wife, and that he could sell her some insurance provided plaintiff would take out a policy; that she wanted to carry insurance in the same company that plaintiff did. After some general discussion plaintiff and his wife each decided to take out a policy, and the agent wrote up separate applications for each. Plaintiff was present during all the conversation had between the agent and the insured. The agent read to plaintiff's wife the questions from an application blank which she later signed, and upon receiving her answers to the respective questions, the agent wrote down what the plaintiff assumed to be the answers of the insured. Neither the insured nor the plaintiff was sitting where they could see what was written. Defendant's agent neither read over the answers to the insured nor gave the application to her to read after he had written down the answers. Plaintiff stated that after the agent "had filled out the questionnaire," he said to the insured, "Sign here, you will sign your name here, and your application is then ready to go in for a policy." Plaintiff was asked specifically if the insured was asked as to whether or not she had had an...
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