Warren v. New York Life Ins. Co.

• Decision Date: 17 January 1916
• Docket Number: No. 11786.,11786.
• Citation: 182 S.W. 96
• Parties: WARREN v. NEW YORK LIFE INS. CO.
• Court: Missouri Court of Appeals

182 S.W. 96

WARREN v. NEW YORK LIFE INS. CO.

No. 11786.

Kansas City Court of Appeals. Missouri.

January 17, 1916.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"Not to be officially reported."

Suit by Nina E. Warren, a minor, by D. P. Warren, her guardian, against the New York Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that an excess be remitted.

Hoffman & Hoffman, of Sedalia (James H. McIntosh, of New York City, of counsel), for appellant. A. L. Shortridge, of Sedalia, for respondent.

TRIMBLE, J.

This is a suit upon a life insurance policy. It was issued January 15, 1913, to Orville E. Warren, 24 years of age, in favor of his minor sister, the plaintiff herein. He died January 14, 1914, of tuberculosis of the bowels.

The only defense was misrepresentation and concealment of material facts by insured in obtaining the policy. The answer set up that he did this knowingly, and that the company did not discover it until after an investigation made by it after receipt of proofs of death; whereupon the insurance contract was promptly rescinded and the return of the premiums tendered, which, upon the beneficiary's refusal to accept, were deposited in court when suit was brought. The representations and concealments are said to be contained in insured's answers to two questions in the Company's Medical Examiner's report which formed a part of insured's application for the insurance, and upon which answers the company's officers testify that they relied in accepting the risk and issuing the policy. One of these two questions was: "Have you ever suffered from any disease of the heart or lungs?" To which the insured made answer: "No. Excepting pneumonia when six years old; sick three weeks; complete recovery." The other question was: "Have you ever consulted any physician for any ailment or illness not mentioned above?" To which insured replied: "No." The applicant further certified in said application that he had carefully read each and all of the answers made therein; that they were each written as made by him; that each of them was "full, complete and true"; and that to the best of his knowledge and belief he was a proper subject for life insurance.

The application and the representations therein contained were made January 15, 1913. It is the contention of the company that at that time the insured was suffering with tuberculosis; that he had in 1912 consulted a physician therefor, and had been told by him that he had pulmonary tuberculosis, that is, consumption of the lungs; that from January 4, 1913, to the 24th of that month he had consulted another physician and had been treated for tonsilitis or sore throat and influenza by such other physician, who, in the latter part of January or the early part of February of that year, finding that his patient was not recovering as fast as he should, made an examination of him and of his sputum, and found he was suffering with pulmonary tuberculosis. The defendant therefore says that insured's answers were not full, complete, and true, but were false and were known by him to be false, and that he concealed from defendant the fact that he had consulted and had been treated by said physicians or either of them. The answer, in setting up the defense of misrepresentations and concealment, and pleading a rescission of the contract on that account, admitted the execution and delivery of the policy, the payment of the premiums, the death of the insured, and the receipt of proofs thereof. The plaintiff, however, introduced the policy, proved that insured paid his last premium on December 13, 1913, that he died at the home of his grandparents which was also his sister's home, in Sedalia, Mo., on January 14, 1914, that she was his sister and the person named as beneficiary in the policy, and that the insurance had not been paid. This evidence, taken in connection with the admissions in the pleadings, made a prima facie case, and plaintiff rested. Thereupon, after a demurrer to plaintiff's evidence had been overruled, the defendant offered evidence to establish its defense, namely, that insured misrepresented and concealed material facts at the time he applied for the insurance.

At the close of all the evidence, the company asked a peremptory instruction to find for defendant. This was overruled. Thereupon the defendant applied for and obtained permission from the court to open and close the argument to the jury. This, of course, was a recognition and admission of the fact that the burden was upon the company to establish its defense of rescission based upon misrepresentations and concealment. The jury returned a verdict for plaintiff in the sum of "$2,000 with interest at 6 per cent. from date of death, amounting to $160." Thereupon judgment was rendered for plaintiff in the sum of $2,160. After an unsuccessful motion for a new trial, the defendant has appealed.

It is very earnestly contended that the defendant's peremptory instruction at the close of the case should have been given and the jury directed to return a verdict for defendant. But the plaintiff had made a prima facie case. The burden was on defendant to establish its affirmative defense, and this defense was denied in the reply. The proof offered by defendant in support of its defense consisted of oral testimony and there was no admission of its truth by plaintiff.

"Under the practice in this state, it is beyond the power of a trial court to direct a verdict in favor of the party sustaining the burden of proof, unless the testimony is admitted to be true or the proof is documentary, which the opposite party is estopped to deny. Such a direction, under other circumstances, would be an invasion of the province of the jury." Jefferson v. German-American Mutual Life Ass'n, 69 Mo. App. 126, loc. cit. 133; Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505; First State Bank of Corweth v. Hammond, 124 Mo. App. 177, 101 S. W. 677; Printz v. Miller, 233 Mo. 47, 135 S. W. 19; Milliken v. Thyson Com. Co., 202 Mo. 637, 100 S. W. 604; Winn v. Modern Woodmen of America, 157 Mo. App. 1, loc. cit. 11, 137 S. W. 292; Troll v. Protected Home Circle, 161 Mo. App. 719, 141 S. W. 916.

But, if we understand the extent of defendant's contention, it seems to be that the evidence in support of plaintiff's case had no bearing whatever upon whether the representations were true or untrue and raised no issue upon that question, and that defendant's evidence so overwhelmingly established the fact that insured had misrepresented and concealed the facts as to make the verdict so palpably against the weight of the evidence that, even though the verdict has received the sanction of the trial judge, we are authorized to interfere. In Jefferson v. German-American Mutual Life Ass'n, 69 Mo. App. 126, loc. cit. 134, it is said:

"It is the duty of the trial judge to interfere whenever in his opinion the verdict of the jury is opposed to the weight of the evidence. His refusal to set aside a verdict for this reason is subject to review only when the appellate court is satisfied that there has been a palpable disregard of the law and evidence, and that he acted arbitrarily or showed an `unjudicial bias' in refusing to grant a new trial. Taylor v. Scherpe, 47 Mo. App. 257; Whitsett v. Ransom, 79 Mo. loc. cit. 260."

Without regard to whether defendant is right or wrong as to the power of the appellate court to interfere under the circumstances mentioned, we cannot agree with its view that the defense has been conclusively established or that there has been no issue raised by the evidence. And therefore, without committing ourselves to the principle insisted upon by defendant, we do not content ourselves with resting the case upon the rule hereinabove stated. We may go further and say that there was substantial evidence tending to show that insured had not misrepresented or concealed the facts at the time he made his application. An appellate court cannot, under any circumstances, interfere with the trial court's judgment on the ground that the verdict is against the evidence if there is any substantial...