143 S.W.2d 257 | Mo. | 1940
Lead Opinion
[1] Defendant defended on the ground that these certificates were "void from the beginning," because purported insured was disqualified to be a member of or insured by the Association when these certificates were issued to her in 1931 upon applications stating her age to be fifty years. Defendant tendered into court all fees and assessments paid by or on behalf of Mrs. Parrish to whom these certificates were issued. [See Klaber v. O'Malley (Mo.), 90 S.W.2d 396.] Defendant assigns error in refusing its requests for peremptory instructions. However, the Court of Appeals found, and defendant seems now to concede, that "there was evidence, both oral and documentary, showing that insured was 55 years of age when the certificates were issued, and there was evidence the statements in the applications, that she was born January 13, 1881, was correct." Therefore, this assignment is overruled.
[2] Defendant's other and principal assignment is against plaintiffs' instruction No. 1, which was as follows:
"The Court instructs the jury that under the law, if the age of the insured was misrepresented in the application for insurance, that fact does not constitute any defense to this action, and said misrepresentation, if so made, would not be a valid reason for refusing to pay the full amount of the insurance issued by defendant upon the life of Norah Isabelle Parrish, unless the jury believe and find from the evidence that the matter misrepresented actually contributed to or caused the death of said insured, Norah Isabelle Parrish."
Defendant's complaint is that it was error to direct the jury that the age of the insured did not constitute any defense if such age did not contribute to cause her death. Defendant's point is that the certificates never became valid contracts, if insured was over the Association's age limit when issued. For the validity of the policies and the propriety of this instruction, plaintiffs rely upon the applicability of the misrepresentation statute. [Sec. 5732, R.S. 1929, 6 Mo. Stat. Ann. 4373.] Each of the certificates sued on provided that "the By-laws of the Association now in force or hereinafter amended or enacted, are taken and construed and made a part of this agreement." Defendant's by-laws, Section 3, provided: "The members of the Association shall consist of . . . persons fifteen years of age, and who at nearest birthday is not more than fifty years of age, who shall make application for and receive a membership certificate . . . and who shall remain in good standing" by paying required assessments. Section 20 provided that "the Board of Directors have power to make . . . (rules and regulations respecting membership application, etc.) . . . and may change the age limit at which members may be accepted into the Association but no changes in the age *822 limit shall be construed as effecting policies theretofore issued." Section 5751, R.S. 1929 (6 Mo. Stat. Ann. 4406) provides that "no corporation doing business under the article shall issue a certificate or policy upon the life of any person who at the nearest birthday is more than sixty years of age." It has been definitely settled that a policy issued to a person over this age, provided in the statute, is void ab initio. [McNairy v. Standard Life Ins. Co. (Mo. App.), 114 S.W.2d 156; Parish v. Missouri Mutual Assn. (Mo. App.), 8 S.W.2d 1018; Reed v. Missouri Mutual Assn. (Mo. App.), 5 S.W.2d 675; Riley v. Missouri Mutual Assn. (Mo. App.), 278 S.W. 780.] Likewise, as recognized in Dieterle v. Standard Life Ins. Co. (Mo. App.), 119 S.W.2d 440, referred to by the Kansas City Court of Appeals as in conflict with its opinion herein, the same thing would be true if the certificate violated the prohibition in Section 5751 against issuing a policy "upon any life in which the beneficiary named has no insurable interest." Does the same rule apply here to a lesser age fixed for membership by the by-laws of this assessment company?
[3] The misrepresentation statute, Section 5732, R.S. 1929 (6 Mo. Stat. Ann. 4373), provides: "No misrepresentation made in obtaining or securing a policy of insurance on the life or lives or 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." This court held, in Bowers v. Missouri Mutual Assn.,
In Carter v. Metropolitan Life Ins. Co.,
[4] In the case of insurance on the assessment plan, when the application, by-laws or articles of association are made a part of the certificate by proper reference, they form a part of the contract of insurance. [Nastav v. Missouri Mutual Assn. (Mo. App.), 47 S.W.2d 166; Propst v. Capital Mutual Assn. (Mo. App.),
[6] Plaintiffs point to the authority given to defendant's board of directors to change the age limit for membership. While the directors may have this power (within the statutory limits) if not in conflict with the articles of association, still there is no evidence in this case to show that they ever did increase the age limit above the age of fifty. Plaintiffs also say that they interpret defendant's plea "to be in the nature of a plea ofultra vires;" and that "such a plea cannot be made when the contract is fully and completely executed on behalf of one of the parties." The trouble with this argument is, that if the insured was over the age of fifty, she did not either have or perform any insurance contract, because the contract was both that she was of this age and that only a person within the age specified was insured. [See DeLoach v. Ozark Mutual Life Assn. (Ark.), 230 S.W. 268, 14 A.L.R. 921, and note l.c. 926-927; note 1 A.L.R. 459, l.c. 463.] Clearly plaintiffs' Instruction No. 1 was wrong, squarely in conflict with defendant's instruction stating that plaintiffs could not recover if Mrs. Parrish was over the age of fifty when the certificates were issued, and prejudicial error.
The judgment is reversed and the cause remanded. Bradley andDalton, CC., concur.
Addendum
What we hold in this case is this: In assessment insurance, where all persons insured must be members of the association, where all members regardless of age pay the same amounts for their insurance, where each policy is to some extent a contract with every other member, and where our statutes fix maximum age limitations beyond which insurance under this plan is prohibited, that an assessment company may by its contract fix age limitations within and less than the statutory maximum age limits; that such a contract does not insure persons over the age limit specified because it plainly says it does not; and that such persons, over the age which the contract agrees to insure, cannot use the misrepresentation statute to change such a contract so as to bind the company to do what the contract expressly provides it would not do. This must be true because age is a definite and certain matter, like an excepted risk or prohibited hazardous occupation. [See Wendorff v. Missouri State Life Ins. Co., *826
Unquestionably, as to a policy in which there was no contract about age limit, or as to persons within the limit where there was one, no misrepresentation as to age (as no misrepresentation about anything else that did not contribute to death) could be a ground for avoidance of the policy. But how can we say, when the contract is an agreement to insure only persons within a certain age limit, that nevertheless such contract can be held to insure a person over the age limit? To say that it does, is not merely to say that misrepresentation as to age prevents avoidance of the contract, but, instead, it is to say that the court will make and enforce a contract to insure a person as to whom there was none agreed upon by the parties. [See Carter v. Metropolitan Life Ins. Co., supra.] Moreover, not only was a contract; to insure only persons under fifty, the only one offered to or agreed upon with plaintiffs' insured, but, in such assessment insurance, defendant (by making this by-law a part of all its contracts) had contracted with every other member that it would not take members over fifty or require them to pay assessments to insure persons over such age. Defendant is not seeking to avoid the contract it offered to and agreed to make with plaintiffs' insured. It stands on the express terms of that contract. We hold that it had the right to make such limitations in its contract, and can be bound only by the contract it agreed to make. We cannot decree the reformation of it (for which no grounds of reformation are stated, such as mistake, etc.), which plaintiffs in effect seek, to hold that defendant was bound to do what its contract expressly provided it was not bound to do.
The motion for rehearing is overruled. Bradley and Dalton,CC., concur.
Addendum
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur. *825
Addendum
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur. *827