The Mutual Life Insurance Company of New York v. Wiegmann
| Decision Date | 04 December 1923 |
| Parties | THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent, v. SOPHIA M. WIEGMANN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. J Hugo Grimm, Judge.
AFFIRMED.
Judgment affirmed.
S. C Rogers for appellant.
Fordyce Holliday & White for respondent.
Frederick L. Allen, of counsel.
(1) If appellant is insisting on her first assignment of error, namely, that she was entitled to a jury trial, then this appeal involves a constitutional question and this court has no jurisdiction. Const. of Mo., art. VI, sec. 12; State ex rel. v. Smith, 141 Mo. 1; Collins v. German, etc., Assoc., 85 Mo.App. 242. (2) The insured applied for this policy in Illinois, paid the first premium in Illinois and the policy was delivered to him in Illinois; therefore, it was an Illinois contract and subject to the laws of Illinois. Thompson v. Traders Ins. Co., 169 Mo. 12; Lange v. Ins. Co., 254 Mo. 488; Lukens v. Ins. Co., 269 Mo. 574; Hamilton v. Darley, 266 Ill. 542. (3) The law of Illinois before, at the time of, and since the issuance of the policy provided that said policy was incontestable for any reason except nonpayment of premiums after two years from its date, and even if insured died within that period and the company denied liability, the company would lose its right to defend on the ground of fraud or misrepresentation if it did not take affirmative action to cancel the policy within the two-year period. Monahan v. Metropolitan Life Ins. Co., 283 Ill. 136; Ramsey v. Old Colony Ins. Co., 297 Ill. 192; Ill. Act of May 20, 1907, section 3, Hurd's R. S. Ill. 1919, page 1739, ch. 73, sec. 208, sec. 1, par. 3; Lavelle v. Metropolitan Co., 209 Mo.App. 330. (4) The misrepresentations made by insured in this case were knowingly made and material, and the finding of the trial court was amply supported by the evidence and should be affirmed. Coscarella v. Ins. Co., 175 Mo. App., 130; Lewis v. Ins. Co., 201 Mo. App., 48; Metropolitan v. Moravec, 214 Ill. 186; Crosse v. Supreme Lodge, 254 Ill. 80; Spence v. Central Co., 236 Ill. 444; Schuermann v. Ins. Co., 165 Mo. 641; Pacific Mutual v. Glaser, 247 Mo. 377; Certer v. Metropolitan, 275 Mo. 84; Daudt v. Deiert, 205 S.W. 222.
--This is a suit in equity instituted by the plaintiff insurance company on November 2, 1921, to cancel a policy of insurance in the sum of $ 5000 issued by plaintiff, on November 5, 1919, on the life of David H. Wiegmann, wherein the defendant, Sophia M. Wiegmann, then the wife of the insured, was named as beneficiary.
The petition alleges that the policy was issued to Wiegmann in O'Fallon, Illinois, where the application therefor was made by him, and that in such application he agreed as follows:
The petition then charges that as a part of his application for the policy signed by him and attached to the policy and made a part thereof, Wiegmann, in answer to certain questions propounded to him by plaintiff's medical examiner, represented, among other things, that he had had no illnesses, diseases, injuries or surgical operations since childhood; that he had not been prescribed for nor treated nor had he consulted any physician or practitioner for the past five years; that he had never been under treatment at any hospital, asylum, cure or sanitarium. It is then averred that plaintiff, believing and relying upon the truthfulness of such representations and in consideration of the agreements contained in said application and the premium paid, and without knowledge of the falsity of any of said answers, issued the policy, by the terms of which the policy and the application attached thereto constituted the entire contract between the parties. Alleging the delivery of the policy to Wiegmann, and the payment of certain premiums by him, it is alleged that Wiegmann died in the City of St. Louis, Missouri, on January 25, 1921; that proofs of death were furnished by the defendant on or about February 7, 1921; that from information contained in said proofs of death and the attending physician's certificate, plaintiff, through investigation, learned for the first time, of the falsity of the representations made by the insured in the application; that such representations were false and known to Wiegmann to be false; that he was then suffering from cancer which afterwards caused his death; that he had been treated by physicians and surgeons during the five years prior to said application; that a surgical operation had been performed upon him within said period and he had been under treatment at a sanitarium or hospital; and that had plaintiff known of such false representations it would not have issued nor delivered the policy. And it is alleged that upon discovering said facts plaintiff denied all liability on the policy, and, on or about April 28, 1921, tendered to defendant the premiums paid thereon with interest, which tender defendant declined.
It is then alleged that plaintiff has no adequate remedy at law and will suffer irreparable injury unless afforded relief in equity for the reason that the policy was applied for by and issued and delivered to Wiegmann while he was a resident of Illinois, and became an Illinois contract, governed by the laws of that State, and contains a clause providing that it shall be incontestable after two years from the date of its issuance except for the non-payment of premiums. And a statute of Illinois, in force at the time, is pleaded, providing that a policy of life insurance and the application attached thereto and made a part thereof shall constitute the entire contract between the parties and shall be incontestable two years from its date except for non-payment of premiums, etc. And it is alleged that the highest court of Illinois, in decisions pleaded, has held that such incontestable clause of a policy of life insurance inures to the benefit of the beneficiary after the death of the insured; that the rights of the parties thereunder do not become fixed as of the date of the death of the insured; and that in order to avoid the policy for fraudulent representations the insurer must take steps to assert its claim within the two-year period, even though the insured does not survive such period. And it is averred that under such decisions plaintiff would be precluded from making any defense to an action on the policy after a period of two years from the date of its issue, i. e. after November 4, 1921; that defendant has not instituted any action on the policy, and plaintiff is informed and believes that defendant intends to delay instituting action thereon until after November 5, 1921, in order to foreclose plaintiff from defending such action on the grounds set forth in plaintiff's petition.
Averring tender and deposit in court of the premiums paid, with interest, plaintiff prays that the policy of insurance be declared void and that defendant be required to surrender the same for cancellation, and for general relief.
Defendant filed a lengthy answer, but we need only notice certain averments thereof. It sets up a provision of the application as follows:
And it is alleged that a conditional receipt was issued to the insured by plaintiff.
The answer then charges, among other things, that under the law of Illinois, and particularly under the decision in Joseph v. Life Insurance Co., 219 Ill.App 452, the answers made by the insured in his statements to plaintiff's medical examiner are not a part of the application and constitute no part of the contract of insurance; that under the law of Illinois, and particularly under certain decisions of the courts of that State pleaded, representations in an application for a policy of insurance must relate to matter material to the risk in order to be available as a defense, and it must be alleged and shown that such representations were not only false and fraudulent but that the insured so knew at the time they were made, and that these matters are questions of fact for a jury to determine. And it is averred that the representations alleged by plaintiff to have been made by the insured to plaintiff's medical examiner did not relate to a matter material to the risk, were not false or fraudulent, nor were they known by the insured...
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