Williams v. St. Louis Life Insurance Co.

• Decision Date: 24 May 1905
• Citation: 87 S.W. 499,189 Mo. 70
• Parties: WILLIAMS v. ST. LOUIS LIFE INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

87 S.W. 499

189 Mo. 70

WILLIAMS v. ST. LOUIS LIFE INSURANCE COMPANY, Appellant

Supreme Court of Missouri, First Division

May 24, 1905

Transferred from St. Louis Court of Appeals.

Circuit court judgment affirmed.

C. W Rutledge for appellant.

(1) The provisions of general insurance laws do not apply to such assessment contracts, and misrepresentations warranted to be true avoid the policy whether fraudulent or not, whether material as a matter of fact or not, or whether of matters actually contributing to the death or not. The "Assessment Plan" insurance law is a complete and independent insurance law of itself. Aloe v. Life Ins Co., 164 Mo. 675; Elliott v. Life Ins. Co., 163 Mo. 132; Hanford v. Mut. Ben. Assn., 122 Mo. 50; Aloe v. Life Assn., 147 Mo. 561; Jacobs v. Life Assn., 142 Mo. 49, 146 Mo. 523; Haynie v. Knights Templar & Ind. Co., 139 Mo. 416; McDonald v. Life Assn., 154 Mo. 618; Richards v. Life Ins. Co., 68 Mo.App. 585; Thassler v. Mut. Life Assn., 67 Mo.App. 505; Sparks v. Knights Templar & Ind. Co., 61 Mo.App. 109. (2) The sole test in determining whether a policy is an assessment contract is: Is there anything in the contract giving the company the right to call for the payment at some time of something more than a flat premium, on account of death losses? Is the "payment of the policy in any manner or degree dependent upon the collection of assessments from persons holding similar contracts?" Is the amount to be paid by the policy-holder a fixed, certain sum or premium, or is the amount to be paid in any manner or degree contingent on death losses? Is the policy-holder's liability certain or contingent? Can an assessment be called under the policy? R.S. 1899, secs. 7901-7906; Hanford v. Mut. Ben. Assn., 122 Mo. 50; McDonald v. Life Assn., 154 Mo. 618; Elliott v. Life Ins. Co., 163 Mo. 132. (3) Section 7901 of the "Assessment Plan" law defines assessment contracts. Section 7910 provides that nothing therein contained shall subject domestic assessment companies to any other provisions of the general insurance laws, except as distinctly herein set forth, and "herein set forth" is construed to mean the entire chapter. Aloe v. Ins. Co., 164 Mo. 675; Hanford v. Benefit Assn., 122 Mo. 50. (4) The court erred in giving the instructions that if the jury believed the refusal to pay was vexatious, they could assess 10 per cent damages and attorney's fees for plaintiff, under section 8012. This statute is not within the assessment law, and does not apply to the case. Again, the refusal contemplated by the statute must have been without reasonable cause. It implies a willfullness. The penalty ought not to be inflicted unless the evidence and circumstance show the delay was without excuse. Blackwell v. Ins. Co., 80 Mo. 75; Lockwood v. Ins. Co., 47 Mo. 50.

J. H. Trembley for respondent.

(1) The first question involved is not whether the policy in question was issued by an assessment or an old line company, but whether the policy issued is an assessment or old line contract. Logan v. Ins. Co., 146 Mo. 114; Toomey v. Supreme Lodge, 147 Mo. 139. Taking its various provisions into consideration, there can be no question but that it is, as held by the trial court, an old line contract, and must be governed by the laws applicable to such policies. R.S. 1899, sec. 7901; Logan v. Ins. Co., supra; Toomey v. Supreme Lodge, supra; Jacobs v. Assn., 146 Mo. 523; Aloe v. Life Assn., 164 Mo. 686. (2) It was not necessary that plaintiff should offer direct evidence of vexatiousness. Vexation can be inferred by the trier of the facts from the facts and circumstances of the case. Brown, Admr., v. Assurance Co., 45 Mo. 227.

VALLIANT J. Brace, P. J., absent.

OPINION

VALLIANT, J.

This is a suit on a life insurance policy. The defendant is a domestic corporation, authorized to issue life insurance policies. On May 26, 1898, it issued its policy of insurance on the life of Cora A. Williams, in favor of her husband, John W. Williams, the plaintiff in this case, for $ 1,000. Cora A. Williams died January 12, 1901, while the policy was in force. Due proof of death was given the defendant; in proper time payment was demanded, and refused. The petition alleges that the defendant has vexatiously refused payment, and prays judgment for the $ 1,000 and interest, 10 per cent statutory damages, and reasonable attorney's fee.

The answer admits the issuance of the policy, avers that on August 8, 1898, it lapsed for non-payment of premiums, on April 5, 1899, it was reinstated, on April 29, 1899, it again lapsed for non-payment of premium due, and on May 15, 1899, was again reinstated; it avers that when assured made application for the policy she imposed on the company by substituting another woman in her stead to stand the medical examination, and also when she made the application for reinstatement of the policy after it lapsed she practiced the same imposition.

The answer then goes on to state that the policy sued on is on the assessment plan, and that it was issued in compliance with the written application of the assured and upon certain representations therein made and also made in her medical examinations, all of which she warranted to be true, and covenanted that the policy should be void if they were not true. These representations were to the effect that the applicant was in good health and had never been afflicted with certain diseases, among them consumption, that there was no consumption in her family, that her father died of paralysis at fifty years of age, also that there was no other insurance on her life, all of which representations the answer alleges were false and the policy was thereby rendered void. The reply put the averments of the answer in issue.

The evidence for the plaintiff tended to prove that the assured was in good health up to a short time before her death, that in the latter part of 1900 she be came afflicted with a quick consumption, and died in January, 1901.

The evidence on the part of defendant in reference to the fraudulent substitution of another woman for the medical examinations was that of the physician who made the examinations, and who at the trial was shown a photograph of the assured, and was asked if he recognized it as the photograph of the woman he examined; he said that he would not say that it was not a photograph of her because he might be mistaken, but he did not recognize it as her photograph.

He testified that on the occasions when he made the examinations he went to the home of the assured early in the morning without having made an appointment with her; he asked for Cora Williams, and a woman there present answered to that name and he examined her. He also testified that the woman he examined was a healthy woman and that she signed the medical examination paper at the time and did not have before her the original application for the policy signed by her. There was some expert testimony to the effect that the signature to the original application and that to the medical examinations were not written by the same hand, but there was other expert testimony that they were written by the same hand. The only other testimony on that point was in an affidavit for a continuance which was to the effect that affiant expected to prove by one Catherine Buford, an absent witness, that she impersonated the assured and stood the medical examination in her stead, and plaintiff to avoid a continuance admitted that if she were present she would so testify. The affidavit for continuance did not state that Catherine Buford ever said that she had done so or what reason affiant had for expecting she would so testify. But when the affiant was afterwards on the witness stand he testified on cross-examination that one Rosie Kibby had told him so. There was on file an affidavit of Catherine Buford used on a motion for a continuance in a former trial of the case, in which she stated among other things that she had not been in St. Louis for nearly four years. The affidavit was admitted in evidence for the plaintiff over the objection of the defendant on the ground that it was competent to impeach the witness.

Testimony for defendant also tended to show that the assured was not a healthy woman when she took out the policy, but had been under medical treatment and that she had had a cough indicating consumption; also that at the time she took out the policy there was another policy on her life for $ 196. There was also evidence pro and con on the question of the defense being vexatious, and as to the amount of a reasonable attorney's fee for the plaintiff.

The above is a very brief summary of the oral evidence, but in the view of the policy as we interpret it and of the pleadings it is sufficient. The terms of the policy will be presently considered.

The cause was given to the jury on instructions by the court of its own motion to the effect that if they should find from the evidence that the policy in question had issued on the life of Cora A. Williams, that she died on January 12, 1901 that the premiums were paid and the policy in force at the time, that the plaintiff was the husband of Cora at the time of her death and due notice and proof of death had been given to the defendant, the plaintiff was entitled to recover $ 1,000 and six per cent interest from February 25, 1901, unless the jury should find from the evidence that in the application for the policy or in the medical examinations some representations as to the health or physical condition of the assured were made which were false and which concerned a matter which actually contributed to her death, or that some other person was substituted for the assured in the medical examinations, or that representations were made in the application or...