198 Mo. 440 | Mo. | 1906
This canséis brought to this court by appeal on the part of the defendant from a judgment of the Cape Girardeau Circuit Court in favor of the plaintiff for the sum of $2,475. This was a suit by plaintiff, who is the widow of August W. Keller, deceased, against the defendant insurance company of New York, an old line company, upon a policy dated October 30, 1899, for $2,000.
The sufficiency of the petition stating the cause of action is not challenged, but it is conceded by appellant that the petition is in the usual form in cases of this character.
The main contentions in this cause arise upon the defenses set up in the answer and the evidence introduced upon such defenses and the instructions given by the court applicable to such evidence; therefore, to fully appreciate this controversy it is important to state at least the substance of the defenses interposed by the answer.
The answer contained three counts. The first count was an admission of the character and business of defendant as charged in the petition, coupled with a general denial.
The second count set out at length the facts leading up to the issuance of the policy; set out fully the application of assured to defendant upon which the
The third count in the answer charged that the statute which provides for a ten per cent penalty for
The replication was a general denial.
The testimony upon the trial of this cause on the part of the plaintiff tended to substantially prove the following state of facts: That August "W. Keller was a farmer about 38 years of age, owning and -operating a large farm, of which about 125 acres were cleared, and doing the greater part of the work himself. In the fall of 1899 he was hunted up by Baird Palette, the agent of the defendant insurance company, and prevailed upon to take out a policy of insurance on his life. On the 18th day of September, 1899, he made application on a blank furnished by the agent, and on the same day was examined by Dr. A. L. Franklin, the medical examiner for the company. In connection with the medical examination he was required to sign a paper entitled: “Declarations made to the Medical Examiner of the Home Life Insurance Company.” The medical report being favorable, a policy for $2,000, payable to Mary M. Keller, wife of the insured, was issued and delivered October 30, 1899. During the same fall, after the date of his application for insurance, Keller put in 40 or 45 acres of wheat, doing most of the work himself, and attended to all of his farming operations. In December he took pneumonia and from this on continued in bad health until he .died in the following June of quick or galloping consumption, an after-effect of the pneumonia. Dr. A. L. Franklin, who was still the medical examiner of the defendant, attended him while he had pneumonia and he treated him for some time thereafter, and in testifying in this cause attributes the
1 ‘ How long have you known him ? Seven years.
“Does his facial aspect indicate health and vigor?
Yes.
“Is there anything unfavorable in his general appearance? No.
“Figure — state whether it is erect or stooping? Erect.
“Is the respiratory murmur clear and distinct over the lungs? Yes.
“Do auscultation and percussion show an entire absence of any signs of past or present disease of respiratory organs? Yes.
“State the rate and other qualities of the pulse? Seventy-two, full and regular.
“Is it irregular, or intermittent? No.
“Are the sounds and rhythm of the heart regular and normal? Yes.
‘ ‘Ts there any evidence of undue strength or weakness of the heart action? No.
“Are there any indications of disease of the heart or blood vessels? No.
“Is the apex-beat in the usual place? Yes.
“Is there any evidence of derangement of function of the stomach or other abdominal organs? No.”
It was further shown in evidence that after the death of plaintiff’s husband defendant without awaiting formal proof of death or any action on the part of beneficiary sent a messenger down into the country to Mrs. Keller’s home with directions to tender her $79.72, the amount of the premium paid by her husband, and to deliver to her a letter from the company denying liability under the policy. The plaintiff, the widow of the deceased, August W. Keller, refused this tender.
The policy of insurance issued by the defendant on October 80, 1899, on the life of August W. Keller, for $2,000, on which this suit is based, was introduced in evidence. We deem it unecessary to reproduce such policy as there is no controversy as to its contents, and such portions of it as have application to the controverted questions involved in this suit will be given due consideration during the course of this opinion. The policy contained this clause: “In consideration of the statements and agreements made in the application for this policy, which are hereby made a part of this contract. ’ ’ A copy of the application was written upon the back of the policy, and this language used in such application: “Iwarrant on behalf of myself and of any person who shall have or claim any interest in any policy issued under this application that all the foregoing statements and answers are true, full and complete, whether written in my own hand or not, and are offered to the company together with those contained in the declarations of the Home Life Insurance Company’s medical examiner as a consideration for, and as the basis of the contract with said company under any policy issued under this application.”
The defendant offered in evidence the declarations made by August W. Keller to the medical examiner, which were signed by August W. Keller, and witnessed by A. L. Franklin, the medical examiner. It is unnecessary to reproduce all of the questions and
“Are you in perfect health so far as yon know and believe? A. Yes.
“Has any physician ever given an unfavorable opinion on your life? A. No.
“Have yon ever had, or have you ever been subject to spitting or coughing? A. No.
“Of blood? A. No.
“Chronic hoarseness? A. No.
“Chronic cough? A. No.
“Difficulty of breathing? A. No.
‘ ‘ Have you ever had any serious illness, disease or injury, not named above? A. No.
“Pías change of climate for your health ever been made or advised? A. No.
“Do you ever drink wine, spirits, or malt liquors? A. No.
“If so, which of these and to what extent? A. No.
“Has there ever been in your family, among your parents, brothers or sisters, uncles or aunts, any consumption, etc? If so, state particulars? No.
“Is your wife, or other member of your household, tuberculous? A. No.
“What is the name and residence of your physician? A. Dr. A. L. Franklin, Dutchtown, Mo.
“When and for what have his services been sought? A. For my family.
“YTrat other physicians have you consulted? A. None.”
Doctors Blomeyer and Kiehne, physicians residing in Cape Girardeau county, Missouri, both testified
The deposition of Dr. Prank W. Chapin, who was defendant’s physician and medical director, was also read in evidence, as well as that of Mr. St. John, vice-president of defendant company. Their testimony was substantially this: That they assumed that Keller’s answers in his application for insurance were true and had they known that Keller had a bad personal history or bad family history, or that he had been treated for
This is a sufficient indication of the facts elicited upon the trial in order to determine the legal propositions involved.
At the close of the evidence the court instructed the jury as follows at the request of the plaintiff:
“1. The court instructs the jury that by the policy of insurance offered in evidence defendant promised and agreed to pay $2,000.00 to Mary M. Keller, if living, immediately upon receipt and approval of proof of death of the said August W. Keller, provided the policy was then in force.. That if you shall find from the evidence that the said August W. Keller died on the 15th of June, 1900, and that plaintiff, Mary M. Keller, is his widow, and shall further find that proof of death was furnished to defendant, or that defendant, after the death of said Keller, offered to return to plaintiff the premium or advance payment made to it by him for said policy and refused to pay plaintiff the amount specified in said policy, then plaintiff is entitled to recover the amount of said policy, with six per cent interest from the time of such refusal to pay, unless you shall find from the evidence that the execution of said policy was procured by said August W. Keller by misrepresentations made by him to defendant or its agent of matters which actually contributed to cause his death. And the court further instructs you that no misrepresentations in securing said policy of insurance are material or sufficient to avoid said policy, unless it shall be shown by the evidence that the matters misrepresented actually contributed to produce the death of said Keller.
“2. And the court further instructs the jury that if you shall find from the evidence that the defendant before the institution of this suit refused to pay plain*452 tiff the amount of said policy, and shall further find from all the facts and circumstances shown by the evidence that its refusal to pay was vexatious, that is, without reasonable cause, then you may allow her, in addition to the amount of the policy, and interest, a sum not exceeding ten per cent of the amount of the policy, and should return a verdict for that aggregate sum if you find the issues for the plaintiff.”
To the giving of the aforesaid instructions the defendant at the time objected and excepted.
At the request of the defendant the court instruct-, ed the jury as follows:
“1. The court instructs the jury that the written application of August "W. Keller, together with his written declaration to the defendant’s medical examiner, are a part of the policy sued on.
“2. The court instructs the jury, if you believe and-find from the evidence that in his application for the policy or contract in suit the deceased, August W. Keller, in answer to questions stated to defendant’s medical examiner, that he had never been subject to asthma or to spitting or coughing, or to spitting or coughing of blood, or to chronic hoarseness, or to chronic cough, or to difficulty of breathing, or been subject to malaria; that he did not drink wine, spirits or malt liquors, except a drink of beer once a week, and that he had never used them to excess; and you further find from the evidence that any one or all of said answers were untrue and that defendant relied upon their truth in issuing the policy in suit and that any one or all the matters which were misrepresented, should you find any of them to have been misrepresented, contributed actually to the death of assured, then your verdict will be for defendant, notwithstanding you may find that such false representations, if any, were innocently made. ’ ’
The court refused the following instructions asked by defendant:
*453 “1. Now, at the close of all the evidence, the court instructs the jury that under the pleadings and the evidence your verdict must be for defendant.
“2. The court instructs the jury that if you believe and find from the evidence that in his application for the policy, or contract in suit, deceased, August W. Keller, in answer to questions, stated to the medical examiner of defendant that he did not drink wine, spirits or malt liquors, and had never used them freely or to excess; that he was in perfect health so far as he then knew and believed; that no physician had given him an unfavorable opinion on his life; that he had never been subject to asthma or to spitting or coughing, or to spitting or coughing of blood, or to chronic hoarseness, or to chronic cough, or to difficulty of breathing, or had never been subject to malaria; that he had consulted no physician other than Dr. A. L. Franklin, of Dutchtown, Mo., and him only for his family; that he did not drink wine, spirits or malt liquors, except a drink of beer once a week, and that he never used them freely or to excess; and you further find and believe from the evidence that all or any of the statements so made were false and were known by said August W. Keller to be false at the time of making them; and that they were made for the purpose of obtaining the policy in suit and that defendant company relied upon the truth of such allegations in issuing the policy in suit; then, in that event, your verdict must be for the defendant, and this notwithstanding you may find and believe from the evidence that none of the matter embraced in such false answer or answers contributed directly to his death. In other words, you are instructed that the applicant warranted his answers in his application to be true, and if you find any of them were untrue and that applicant knew them to be untrue at the time of making them and that they were relied upon by defendant in issuing the policy such false representations were fraudulent and render the policy in suit void.
*454 “3. The court instructs the jury that under the evidence and pleadings you will disregard the claim made by plaintiff for ten per cent damages.”
To which ruling of the court in refusing the last three instructions defendant at the time objected and excepted.
The cause was submitted to the jury upon the evidence and instructions as heretofore indicated and they found the issues for the plaintiff and assesed her damages in the sum of $2,475. A timely motion for a new trial was filed and by the court overruled. Judgment was entered in accordance with the verdict and from this judgment the defendant in due time and proper form prosecuted its appeal to this court and the record is now before us for review.
Opinion.
The record in this cause discloses the assignment, of numerous complaints of error committed by the trial court, but it is apparent from the brief of learned counsel for appellant that the contentions in respect to such errors are mainly directed to the giving, at the request of plaintiff, of erroneous instructions, and the refusal, at the request of defendant, to give proper instructions. The complaints of appellant may thus be briefly stated:
First. That instruction number 1 given by the court at the request of plaintiff, was erroneous, and that the court committed error in its refusal of instruction number 2 requested by defendant.
Second. That instruction number 2 given by the court at the request of plaintiff, was improper and erroneously declared the law.
Third. That the court improperly refused instruction number 3 requested by defendant.
Fourth. That the court erroneously refused to*455 give the peremptory instruction in the nature of a demurrer to the evidence, requested by defendant.
We will treat of these complaints of appellant in the order as above indicated.
I. Instruction number 1, the correctness of which is challenged by appellant, is predicated upon section 7890, Revised Statutes 1899, which provides that “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. ’ ’
That section has been in judgment before this court in numerous eases, and its force and effect have been fully recognized; hence it must be treated as a yalid, subsisting statute, applicable to the subject it was designed to cover. [Jacobs v. Life Association, 146 Mo. 523; Aloe v. Life Association, 164 Mo. 675; Schuermann v. Ins. Co., 165 Mo. 641; Jenkins v. Ins. Co., 171 Mo. 383; Williams v. Ins. Co., 189 Mo. 70.] This section, in the cases cited, received at the hands of the court most careful consideration, and the reasons for its enactment are clearly stated in Schuermann v. Ins. Co., supra, wherein it is said: “The act in question was in no sense intended as a general restraint upon the power of courts of equity by proper proceedings to relieve against actual fraud, perpetrated or attempted against insurance companies doing business in this State, by parties seeking insurance; but its manifest aim and object was to check and prevent the wrongs and injustice that too frequently befell the relatives and friends of the insured .after their death, resulting from the growing evil practiced by life insurance companies, of calling for answers to all manner of immaterial questions from the applicant for insurance,
Appellant is in no position in this cause to challenge the applicability of section 7890, for the reason that it requested and obtained instruction number 2, which is clearly predicated upon the provisions of this section. This must be treated as a clear recognition by appellant of the applicability of the provisions of second 7890 to the facts in this case. However, it is insisted by appellant that the declarations to the medical examiner, which are contained in the application for insurance, by the insured, should be treated as warranties under the provisions of the policy, and it is contended that the failure of such warranties avoids the policy, and the instruction was erroneous in treating such warranties as mere representations. We are unable to give our assent to this insistence. In the very recent case of Jenkins v. Ins. Co., supra, Burgess, J., speaking for this court, left no doubt as to the views of the court upon this proposition, and in plain terms announced that there was no reason for making a distinction between warranties and representations. In discussing this subject, it was said: “It is indisputable that before the passage of the act in question and up to the time of the decision in Jacobs v. Life Assn., supra, it was always held by the 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
Following the rules so clearly announced in that case and in view of the fact that appellant, by its instruction number 2, fully recognized that the provisions
II. It is next earnestly contended and ably argued that instruction number 2 given at the request of plaintiff, was erroneous.
This instruction complained of is predicated upon section 8012, Revised Statutes 1899, which provides: “In any action against any insurance company to recover the amount of any loss under a policy of fire, life, marine or other insurance, if it appear from the evidence that such company vexatiously refused to pay such loss, the court or jury may, in addition to the amount thereof and interest, allow the plaintiff damages not exceeding ten per cent on the amount of the loss, and a reasonable attorney’s fee; and the court shall enter judgment for the aggregate sum found in the verdict.”
The contention of appellant respecting the error complained of in the giving of instruction number 2, is based upon two theories: First, that the section is unconstitutional ; second, that there was no evidence upon which to predicate such an instruction.
As sustaining the contention that section 8012 is unconstitutional, our attention is directed to Paddock v. Railroad, 155 Mo. 524, and Thompson v. Traders’ Ins. Co., 169 Mo. 12. It will be observed that the Paddock case is based upon the ruling of the Supreme Court of the United States in Railroad v. Ellis, 165 U. S. 150, and in the case of Thompson v. Traders’ Ins. Co. it was held that the Constitution and laws of Missouri had no application to the facts in that case, for the reason that the property insured was located in the State of Kansas. The contract was entered into in that State; the property was destroyed in that State;
In Fidelity Mut. Life Assn. v. Mettler, 185 U. S. 308, the constitutionality of a statute of the State of Texas was involved. It provided as follows: “In all cases where a loss occurs and the life or health insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be- liable to pay the holder of such policy, in addition to the amount of the loss, twelve per cent damages on the amount of such loss, together with all reasonable attorney’s fees for the prosecution and collection of such loss.”
In that case it was earnestly and ably argued that the Ellis case was a controlling authority in support of the contention that the statute above indicated was unconstitutional and was decisive of the question; however, the Supreme Court of the United States, speaking through Mr. Chief Justice Fuller, ruled otherwise, after reviewing all the authorities held that the Supreme Court of Texas, as well as the Court of Appeals of that State properly distinguished the Ellis case, and it was expressly ruled that the statute of Texas, applicable to this subject, was constitutional.
In Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, the constitutionality of the Texas statute was again challenged, notwithstanding the recent ruling of that court in case of Life Assn. v. Mettler, supra. The court disposed of this effort to have the question reconsidered,
The lawmaking power in the enactment of the Texas statute, as well as the Missouri General Assembly in the enactment of the statute in the case at bar, doubtless, as was said in the Mettler case, “had in mind also the necessity of the prompt payment of the insurance money, in very many cases, in order to provide the means of living of which the beneficiaries had been deprived by the death of the insured.”
We are of the opinion that the Mettler case clearly and correctly'announced the true rule applicable to the Texas statute, and the rules announced in that case being equally applicable to the Missouri statute treating of the same subject, it becomes our duty to follow that case; hence it must be held that section 8012 is a valid and subsisting law, and may be enforced by the courts of this State; and there was no error in giving instruction number 2 on that ground.
It is however insisted that there was no testimony upon which to base such instruction. The question of vexatious delay on the part of the defendant in paying this death claim, was one of fact to be determined by the jury.
It was said by this court in Brown v. Ry. Passenger Assurance Co., 45 Mo. 1. c. 227, that “the whole question of vexatious refusal or delay is a matter of fact to be determined by the jury. They must make up their verdict on this issucTby a general survey of all the facts and circumstances in the case; and if, upon a full consideration, they conclude that the refusal was unjustifiable and vexatious, the law authorizes them to assess
In our opinion th*e record discloses sufficient evidence to warrant the court in submitting the question of vexatious delay in the payment of this claim to the jury, and we shall not undertake to usurp the province of the jury and retry such question upon this appeal.
III. Instruction number 3 requested by defendant was properly refused by the court. It substantially told the jury to ignore the claim of plaintiff for damages by reason of vexatious refusal to pay the death claim, the recovery of which was sought by this action.
Section 8012, which provides for the recovery of such damages, has been heretofore fully discussed, and it is sufficient to say that there was no error in the action of the court in its refusal of this instruction.
IV. This brings us to the final contention of appellant, that the evidence in this cause is insufficient to support a recovery and that the court erred in its refusal of the peremptory instruction requested by defendant, declaring that under the pleadings and evidence in this cause plaintiff is not entitled to recover.
Upon this contention appellant earnestly insists that the statements of August W. Keller to the medical examiner of defendant, that he had not been treated by any other physician, when in fact the testimony of the physicians shows that this statement was untrue, should avoid this policy, and the court should have so declared to the jury. Defendant is in no position to complain that the question as to whether the insured had ever been treated by another physician prior to the time he made his declarations to the medical examiner was not submitted to the jury, for there was no request made to submit that question. Instruction number 2 given at the request of defendant includes numerous
We have read in detail the evidence in this cause as disclosed by the the record and in our opinion it was a case for the jury. The jury had the doctors who testified in this cause before them at the trial, and it was
The defendant in this cause, as was ruled in Schuermann v. Ins. Co., supra, might have maintained a proceeding in equity prior to the death of August W. Keller to annul the contract of insurance, on the ground of false and fraudulent statements charged in the answer; but after the policy had been duly issued and all liability under it had matured on account of a contingency therein provided against, it is clear that the question of false and fraudulent representations in securing such policy in an action to recover the amount of the death claim, must be governed by the provisions of section 7890, and as to whether the misrepresented matters in the application for insurance contributed to the happening of the contingency insured against, are questions of fact to be determined by the jury to whom such facts are submitted.
The defendant in this cause had the sole power of selecting its medical examiner; it selected Dr. Franklin. He made the examination of Mr. Keller, reported the
It was doubtless the dominating thought in the legislative mind by the enactment of section 7890, to meet and cover just such cases of the nature and character here presented.
We have indicated our views upon the legal propositions disclosed by the record. The issues of fact in this cause were fully and fairly covered by the instructions of the court, and finding no reversible error the judgment of the trial court should be affirmed, and it is so ordered.