De Valpine v. New York Life Ins. Co.

• Decision Date: 01 June 1937
• Docket Number: No. 24269.,24269.
• Citation: 105 S.W.2d 977
• Parties: DE VALPINE v. NEW YORK LIFE INS. CO.
• Court: Missouri Court of Appeals

105 S.W.2d 977

DE VALPINE v. NEW YORK LIFE INS. CO.

No. 24269.

St. Louis Court of Appeals. Missouri.

June 1, 1937.

Rehearing Denied June 15, 1937.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be published in State Reports."

Suit by Lola E. De Valpine against the New York Life Insurance Company. From an order sustaining plaintiff's motion for new trial after judgment on a verdict for defendant, defendant appeals.

Affirmed and remanded.

Jones, Hocker, Gladney & Jones, James C. Jones, Jr., and Arnot L. Sheppard, all of St. Louis, for appellant.

Jesse L. England, of Kirkwood, and Orla M. Hill, of Clayton, for respondent.

McCULLEN, Judge.

This suit was instituted by respondent, plaintiff below, to recover the sum of $2,000 on a policy of life insurance issued by appellant, defendant below, to Jean V. De Valpine, plaintiff's deceased husband. A trial before the court and a jury resulted in a verdict and judgment in favor of defendant. Plaintiff in due time filed a motion for new trial, which was sustained. From the action of the court in sustaining plaintiff's motion for a new trial defendant appeals.

The policy sued on was issued by defendant to the insured on August 29, 1924, and originally provided for the payment to plaintiff, as beneficiary named therein, of the sum of $5,000 upon receipt of proof of the death of the insured. The premium on the policy which was due on August 29, 1933, was not paid and the policy lapsed. There was a provision in the policy that at any time within five years after default in payment of premiums by the insured, and upon presentation at defendant's home office of evidence of insurability satisfactory to defendant, defendant would reinstate the policy upon payment of loan interest and of all arrears of premiums with 5 per cent. interest thereon from their due date.

After the policy had lapsed for nonpayment of premium, the insured executed an application for reinstatement thereof and also requested that the amount of insurance named in the policy be reduced from $5,000 to $2,000. The application for reinstatement was dated November 24, 1933. It shows on its face, however, that it was stamped by defendant: "Received Missouri Cl. House Branch Nov. 20, 1933." The policy was reinstated for the sum of $2,000 as requested by the insured. The insured died on March 1, 1934.

No question is presented herein as to plaintiff's petition. Defendant did not ask for a directed verdict at the close of plaintiff's case, and does not contend in this court that its peremptory instruction in the nature of a demurrer to the evidence at the close of all the evidence should have been given.

The defense of defendant was based upon misrepresentations alleged to have been made by the insured in his application for reinstatement of the policy as to matters which caused or contributed to cause his death. Defendant alleged, and introduced evidence to prove, that the insured in his written application for the reinstatement of the policy represented to defendant that he was at the time of said application, to the best of his knowledge and belief, in the same condition of health as he was when the policy was issued, and that he had not, within two years preceding his application for reinstatement of said policy, had any illness, disease, or bodily injury and had not consulted or been treated by any physician. The application for reinstatement showed that the insured certified that his answers to the questions propounded to him therein were full, complete, and true, and that defendant "believing them to be true shall rely and act thereon."

Defendant's evidence tended to show, as defendant alleged in its answer, that the statements and representations made by the insured, as to the condition of his health, in his application for reinstatement of the policy were false, in that at the time of his application for reinstatement on November 24, 1933, the insured was not in the same condition of health as he was when the policy was issued but was then afflicted with chronic diarrhea, paralysis of the bladder, inflammation of the bladder, and cancer of the pancreas, from which he had been disabled from performing the regular duties of his occupation since September 2, 1933, and that he had, within two years preceding his application for reinstatement of the policy, consulted and been treated by Dr. Duff Allen and Dr. H. L. Meador for said ailments or diseases. Defendant also alleged, and introduced evidence to prove, that at the time it accepted the insured's application for reinstatement of the policy, it had no knowledge that he was suffering from the diseases mentioned and did not know he had consulted and been treated by physicians therefor, and that had it known of the insured's affliction with said diseases or of his disability as a result thereof, or of his consultation with and treatment by said physicians, it would not have accepted said application or reinstated said policy.

Plaintiff's reply put the allegations of defendant's answer in issue.

The trial court's action in sustaining plaintiff's motion for a new trial was based upon two grounds in said motion as follows: Because the court erred in giving the jury, at the request of defendant, instruction No. 3; and because the court erred in refusing to give instruction marked C offered by plaintiff.

Instruction No. 3, the giving of which on behalf of defendant constituted one of the grounds for the granting of a new trial, was as follows: "You are instructed that if you find and believe from the evidence herein that on or before November 24, 1933, the insured, Jean V. DeValpine, was afflicted with cancer of the pancreas and that his death resulted therefrom on March 1, 1934, then plaintiff is not entitled to recover in this cause, and your verdict should be in favor of defendant, even though you may further find and believe from the evidence herein that said DeValpine had no knowledge that he was suffering from such cancer, if you find that he was."

Defendant contends that the above instruction correctly hypothesized the only question in dispute, namely, was decedent suffering from cancer of the pancreas on or before November 24, 1933? Defendant points out that the instruction also submitted the hypothesis that the insured died of the disease mentioned, although plaintiff's own evidence showed that he did die of that disease and contends that it was not reversible error either to assume or to omit to require the jury to find such admitted fact. We dispose of the latter point at once by saying it was not necessary under the evidence adduced to require the jury to find the conceded fact that the insured died of the disease mentioned, but it was not prejudicial error to do so. Bowers v. Kansas City Public Service Co., 328 Mo. 770, 41 S.W.(2d) 810.

Section 5732, R.S.Mo.1929 (Mo.St.Ann. § 5732, p. 4373), provides as follows: "No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any case shall be a question for the jury."

It has been held that the above statute is applicable to misrepresentations in securing a reinstatement of a policy of insurance. Jenkins v. Covenant Mut. Life Ins. Co., 171 Mo. 375, 71 S.W. 688; Masson v. Metropolitan Life Ins. Co., 225 Mo.App. 925, 36 S.W.(2d) 118.

Under a clause of the policy called "Miscellaneous Provisions," it is provided that the policy and the application therefor constitute the entire contract, and that: "All statements made by the Insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid the Policy or be used in defense to a claim under it, unless it be contained in the written application and a copy of the application is indorsed upon or attached to this Policy when issued. * * *" Stamped upon the policy which was introduced in evidence appears the following:

"The amount of the insurance under this Policy is hereby reduced, from Aug. 29, '33, to Two Thousand Dollars ($2,000) the annual premium to Eighty-Five Dollars and Fifty-Eight Cents ($85.58) and any amounts in this Policy relating to the original sum insured are reduced to Two Fifths `2/5' of the original amount.

"The conditions of the original Policy remain unchanged except as modified by this reduction.

                "New York, Nov. 29, 1933
                  "Frederick M. Johnson
                         "Thos. A. Buckner, President."
                

We are of the opinion that the trial court was right in holding that instruction No. 3 given for defendant was erroneous.

In Jenkins v. Covenant Mutual Life Ins. Co., 171 Mo. 375, 71 S.W. 688, our Supreme Court held that the misrepresentation statute, now section 5732, R.S.Mo.1929 (Mo.St. Ann. § 5732, p. 4373), nullifies warranties as well as other misrepresentations if the matter misrepresented is not material to the risk. The court said in that case that prior to the case of Jacobs v. Life Ass'n, 146 Mo. 523, 48 S.W. 462, it had always been held by our Supreme Court that there was a very material distinction between warranties and representations, and where a policy was applied for and the applicant warranted some matter, however immaterial to the risk and whether or not the assured died of any disease warranted against, if the warranties were shown to be untrue the policy was held to be void. Further referring to Jacobs v. Life Ass'n, supra, the court went on to say with respect to warranties and misrepresentations: "But they were by that case placed upon the same footing, and rightly held to be embraced within the provisions of section 7890, supra [Mo.St.Ann. § 5732, p. 4373]. There is no more reason why a warranty not material to the...