The State ex rel. John Hancock Mutual Life Insurance Company v. Allen

• Court: Missouri Supreme Court
• Writing for the Court: LINDSAY
• Citation: The State ex rel. John Hancock Mutual Life Insurance Company v. Allen, 267 S.W. 832, 306 Mo. 197 (Mo. 1924)
• Decision Date: 30 December 1924
• Docket Number: 25273
• Parties: THE STATE ex rel. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals

267 S.W. 832

306 Mo. 197

THE STATE ex rel. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals

No. 25273

Supreme Court of Missouri

December 30, 1924

Writ quashed.

Leahy Saunders & Walther for relator.

(1) The assured according to the uncontradicted documentary evidence in this case, had tuberculosis at the time he applied for insurance. Stephens v. Met. Ins. Co., 190 Mo.App 673; Burgess v. Pan-American Ins. Co., 230 S.W. 315; Hicks v. Met. Life Ins. Co., 196 Mo.App. 162; Oglesby v. Railroad, 150 Mo. 137; Carter v. Ry Co., 156 Mo. 635; Guthrie v. Holmes, 272 Mo 215; Gilmore v. Modern Brotherhood, 186 Mo.App. 445; Suah v. Mystic Workers, 196 S.W. 62; McKinally v. Yeomen, 152 N.W. 169; Pampusch v. Nat. Counsel, 176 N.W. 158; Bruck v. Mutual Life Ins. Co., 194 Mo.App. 529; Whiteside v. Court of Honor, 231 S.W. 1026. (2) Proofs of death filed by a beneficiary of a life insurance policy, which show that the assured died of a disease which he had at the time of his application are conclusive unless explained or contradicted, and in the instant case there was no explanation. Stephens v. Met. Life Ins. Co., 190 Mo.App. 673; Castens v. Supreme Lodge, 190 Mo.App. 57; Quentham v. Modern Woodmen, 148 Mo.App. 33; Almond v. Modern Woodmen, 133 Mo.App. 382; Schertz v. Ins. Co., 251 S.W. 93. (3) The good or bad faith of the applicant for insurance is immaterial, if, as a matter of fact at the time of the application, and at the time of the delivery of the policy, the assured is actually suffering from a disease which caused or contributed to cause his death. Burgess v. Pan-American Ins. Co., 230 S.W. 315; Kern v. Legion of Honor, 167 Mo. 467. (4) These propositions of law as applied to the undisputed facts of this record established by documentary evidence, set out in the opinion would preclude a recovery in a common law action and a fortiori in an equity action. (5) This was a proceeding in equity and the Court of Appeals erroneously held that the case should have been tried by the lower court as a commonlaw case, which holding is in direct conflict with the case of Carter v. Metropolitan Life Ins. Co., 275 Mo. 84, 94, which case has not been overruled by the later case of State ex rel. v. Trimble, 292 Mo. 371, as held by the Court of Appeals, for the reason that the Carter case and the instant case involve exactly the same proposition, namely, a cross bill in equity to cancel a policy after death of the assured secured by fraudulent misrepresentations as to health and by fraudulent impersonation of the insured at the time of the application. (6) In an appeal in an equity case it is the duty of the appellate court to review the entire record This the St. Louis Court of Appeals declined to do in this case on the theory this was a common-law case and not an equity suit, and thereby it ignored the controlling effect of the following decisions of this court declaring it to be the duty of the appellate court to review the entire record in the case: Price v. Morrison, 236 S.W. 302; Derry v. Fielder, 216 Mo. 195; Daudt v. Steiert, 205 S.W. 222; Gibbs v. Haughowont, 207 Mo. 384.

Wm. McNamee and James J. O'Donohoe for respondents.

(1) By introducing the policies in evidence and proving the death of insured, plaintiff established a prima-facie case and cast the burden of pleading and proving an affirmative defense on defendant Lafferty v. Kansas City Cas. Co., 229 S.W. 750; Peterson v. Railroad, 265 Mo. 480. (2) The evidence in the case showed that the insured, at the time he made applications for the policies and when they were delivered, was in a state of insurability. And defendant has abandoned its so-called defense founded upon substitution. (3) Admissions contained in proofs of death are not conclusive on the beneficiary. Holmes v. Protected Home Circle, 199 Mo.App. 528; Remfry v. Ins. Co., 196 S.W. (Mo. App.) 775; Vormehr v. K. O. F. M. 198 Mo.App. 276; Bambergs v. Tribe of Ben Hur, 159 Mo.App. 102. (4) The testimony of relator's medical examiner is sufficient to repel contrary statements, if any, in the proofs of death. Keller v. Ins. Co., 198 Mo. 440; Buchholz v. Ins. Co., 177 Mo.App. 683. (5) Sec. 6142, R. S. 1919, abolishes warranties. And the most favorable view that can be taken for relator is that the question whether insured made misrepresentations is one of fact for the court or jury. Williams v. Ins. Co., 189 Mo. 70; Jenkins v. Ins. Co., 171 Mo. 375; Hicks v. Ins. Co., 196 Mo.App. 162; Bruck v. Ins. Co., 194 Mo.App. 529; Schuler v. Ins. Co., 191 Mo.App. 52; Clarkson v. Ins. Co., 190 Mo.App. 624; Roedel v. Ins. Co., 176 Mo.App. 584; Coscarella v. Ins. Co., 175 Mo.App. 130; Conner v. Association, 171 Mo.App. 364; Lynch v. Ins. Co., 150 Mo.App. 461; Salts v. Ins. Co., 140 Mo.App. 142. (6) Relator neither averred nor proved that the alleged misrepresentations made by insured in his application for the policy were "willfully and knowingly made for a fraudulent or corrupt motive." This is fatal. Pacific Mut. Life v. Galser, 245 Mo. 377; Beeler v. Supreme Tribe, 106 Neb. 853; Metropolitan Life Ins. Co. v. Larson, 85 Ill.App. 143. (7) The medical examiner is the agent of the company for the purpose of ascertaining the insurability of the applicant, and the company is bound by his judgment as to his physical condition. Modern Woodmen v. Angle, 127 Mo.App. 94; Sternaman v. Met. L. Ins. Co., 170 N.Y. 13; Masonic Life Assn. v. Robinson, 149 Ky. 80; Fair v. Met. L. I. Co., 5 Ga.App. 708; So. A. Life Ins. Co. v. Hurt, 115 Va. 398; Roe v. Life Ins. Assn., 37 Iowa 696; New York Life v. Moats, 207 F. 481; De Lancey v. Ins. Co., 52 N.H. 581. (8) The right to rescind a contract on the ground of fraud must be on discovery of the fraud. Relator elected to treat the policies as valid contracts and held on to the consideration until after action was brought. Wood v. Tel. Co., 223 Mo. 565; Taylor v. Short, 107 Mo. 384; Lierheimer v. Life Ins. Co., 122 Mo.App. 374; Bell v. Ins. Co., 166 Mo.App. 390. (9) The case should have been tried on the law and not on the equity side of the court. State ex rel. v. Trimble, 292 Mo. 383; Schuermann v. Union Central Life, 165 Mo. 641; Mutual Life v. Stevens, 195 N. W. (Minn.) 913. Relator cannot be heard to complain, for the case was tried at its instance in equity instead of at law.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

This is a proceeding upon writ of certiorari to the judges of the St. Louis Court of Appeals. The relator seeks to quash the record of the Court of Appeals, which affirmed the judgment of the Circuit Court of the City of St. Louis, in favor of Josie Cradick, as plaintiff, against relator, John Hancock Mutual Life Insurance Company, as defendant. Relator contends that the ruling of the Court of Appeals conflicts with certain controlling decisions of this court. The nature of the suit, the proceedings therein, and the facts as found by the Court of Appeals are stated as follows:

"This is an action on two life insurance policies issued to George Cradick. The suit was instituted by Josie Cradick, his wife who was named as the beneficiary in both policies. The petition is in the usual form, and asks for judgment, in addition to the amount of the policies, for damages and attorney's fees for vexatious refusal to pay.

"The defendant filed an answer and cross-bill, alleging that the party who actually procured the insurance in the name of George Cradick was an impostor, and that misrepresentations had been made in the procurement of the policies, in that deceased was suffering from tuberculosis at the time he secured the policies in question, and that such disease had directly contributed to his death. Defendant also asked for cancellation of the policies.

"The reply was a general denial, and the allegation that the answer was a sham used in an attempt to convert an action at law into a suit in equity. The latter part of the reply was stricken out.

"The court denied plaintiff the right of trial by jury upon the issues joined, and proceeded to hear the same as a suit in equity. The plaintiff introduced the policies, and made proof of the death of deceased, thus establishing her prima-facie case.

"Each of the policies of insurance was for $ 1000, one dated February 8, 1919, and the other March 5, 1919, and the insured, George Cradick, died on the 2nd or 3rd day of August, 1919.

"Samuel Greenspan, the agent of the defendant at the time the policies were issued, testified that the name of George Cradick was signed to the application for the policies, and was written in his presence; that he heard the deceased answer 'No' to the following questions:

"'Has applicant ever received treatment for illness in a sanitarium, cure or health resort?

"'Has applicant or anyone in your family ever had consumption or any disease of the lungs?'

"From this witness's testimony it appears that he had known the insured for about five years prior to the issuance of the policies in question, and during a part of such time he lived directly across the street from him, that there was no doubt but what the man who signed the application was George Cradick. The insured had two industrial policies, which, at the suggestion of witness, were converted into a life policy; that he never knew the insured to be sick. One of the industrial policies had been issued in the year 1897.

"G. V. R. Mechim, a handwriting expert, testified that the signature of George Cradick on the application for insurance did not appear to be written by the same hand that wrote the name 'George Cradick' on another exhibit.

"Dr M. J. Dwyer, who was superintendent of the Koch Hospital in 1918, testified, over the objections and exceptions of plaintiff's counsel, that about two...