45 Mo. App. 426 | Mo. Ct. App. | 1891
— The plaintiff, widow of Geo. W. Herndon, deceased, sued the defendant on account of three several certificates or policies of insurance made for her benefit and on application of her husband. The answer set up three defenses : First. Misrepresentations in the applications for insurance. Second. Failure to pay assessments and dues. Third. That the certificates were canceled prior to Herndon’s death. The reply denied these and set up that the answers to the interrogatories contained in the application were truthfully made, but that the defendant’s agent writing up the application, without the knowledge of Herndon, incorrectly filled in the responses made by the assured. At the trial in the circuit court plaintiff had a verdict and judgment in her favor on the three counts of the petition, aggregating $1,036.50, from which defendant has appealed.
I. Chief among the defenses relied upon were, first, that in the application for insurance, signed by the said Geo. W. Herndon, he had falsely answered certain questions therein propounded, wherein said Herndon had stated in substance that he was sound and in good health, and that no brother of his had died or was afflicted with consumption, and, second, that subsequent to the issue of the policies the alliance had been informed of the falsity of these representations, and had then, with the knowledge and acquiescence of said assured, canceled the said insurance. Defendant introduced evidence tending to prove that both Herndon and a brother had been afflicted with consumption, and that the brother had died with said disease before the application was signed. Opposed to this there was testimony on the part of the plaintiff tending to establish doubt as to whether the assured or brother had consumption, and there was evidence tending further to show that when Davis, defendant’s agent, secured the applications, Herndon candidly and truthfully informed
II. Defendant’s objection to plaintiff’s petition is not well taken. It seems to be the contention that plaintiff had adopted an improper remedy; that she could only sue in equity for a specific performance of the contract to levy an assessment on the various members of the benevolent association. Without an extended discussion we may say that this point is settled against defendant’s contention by a late decision of the supreme court. Taylor v. Temperance Union, 94 Mo. 35. It was there said, in a similar case to this : “We are satisfied that had the petition in this case averred that the defendant had refused to make the assessment which it had agreed to make, and that if such an assessment had been made, defendant could or would have realized the sum of $1,000, that a good cause of action would have been stated for the recovery of the whole of said sum.'” These allegations substantially appear here in plaintiff’s petition.
III. Much is said in plaintiff’s instructions, as well as in counsel’s printed argument, in relation to Herndon’s alleged ignorance of the contents of the application for insurance as signed by himself. There is no pretense that he was induced by any fraud, deceit
Notwithstanding the application may have falsely stated matters material to the risk, “yet'if the insurer, or its agent, had knowledge of the true state of the matter, from any source, at the time when the contract was entered into, the policy will not be thereby avoided.” Wood on Fire Ins., sec. 205; Combs v. Ins. Co., 43 Mo. 148. The same rule applies in this regard to life insurance as to fire insurance. Phillips on Insurance, 643.
It would seem entirely proper that the constitution and by-laws of the defendant corporation be put in evidence on a retrial of thiá case. By that it may be determined as to what authority, if any, the secretary had to cancel certificates or policies; what dues or assessments may be collected of members; and the result of non-payment, etc.
For reasons first stated, the judgment is reversed and the cause remanded.