150 Mo. App. 461 | Mo. Ct. App. | 1910
This is a suit on a policy of life insurance. Plaintiff recovered and defendant prosecutes- the appeal.
Defendant, an old line life insurance company, doing business under the laws of this state, on the 23d day of July, 1907, "issued its policy of insurance in the ¿mount of $1000 on the life of Michael J. Lynch, paya
This suit having been instituted on the policy, defendant answered thereto by interposing three affirmative defenses which will be noticed in their order. For its first defense, it is averred that at the time of making application to it for the insurance, the insured stated therein that he was in good health and that he had never been attended by a physician and that he had never suffered from insanity; that relying upon the truth of said statements, defendant contracted the insurance involved, which, but for its belief in the truth of the statements aforesaid, would not have been issued.
It is averred, too, that each and all of said statements were misrepresentations of fact on the part of the insured in that he was not then in good health but was suffering from a disease known as paresis or softening of the brain; that the insured had been attended by a physician prior to the date of his application; was then under the care of a physician; and that he had suffered and was then suffering from insanity. It is further averred that the said disease, from which insured represented he had never suffered and for which he had been attended by physicians and which at the time rendered his health unsound, directly contributed to and occasioned his death on January 29th thereafter, while in the insane asylum. Wherefore, it is said the matters so misrepresented by insured to defendant act
The court submitted the matter of the alleged misrepresentations to the jury in instructions, directing that the burden of proof with respect thereto rested
“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.” [Sec. 7890, R. S. 1899; sec. 7890, An. St. 1906.]
See also the folloAving authorities in point: Schuermann v. Union Cent. Life Ins. Co., 165 Mo. 641, 65 S. W. 723; Keller v. Home Life Ins. Co., 198 Mo. 440, 95 S. W. 903; Salts v. Prudential Ins. Co., 140 Mo. App. 142, 120 S. W. 714; Burns v. Met. Life Ins. Co., 141 Mo. App. 212, 124 S. W. 539; Ashford v. Met. Life Ins. Co., 98 Mo. App. 505, 72 S. W. 712; Christian v. Connecticut Mut. Life Ins. Co., 143 Mo. 460, 45 S. W. 268; Cooley’s Briefs on Insurance, vol. 3, pp. 1989, 1990.
The second defense relied upon sets forth a warranty, which, it is asserted, is contained in the application and a condition of the policy together, to the effect that, unless the insured vras in sound health at the time of issuing the policy, it should not take effect. A breach of this warranty is alleged and defendant prays to be discharged on that account. The court declined to deal with this matter of a breach of warranty and refused an instruction drafted on the theory that the insured had. warranted his good health
Under the instructions given for both plaintiff and defendant by which the first defense was submitted, the verdict for plaintiff affirmed either that the insured Avas in good health at the time the insurance was effected or that 1 if he Avas not in good health and had been visited by physicians his then condition in no way contributed to his death or the event upon which the policy became payable. This verdict responded to the
The third count of defendant’s answer presents the matter of willful fraud on the part of both the insured and his wife, the plaintiff, in obtaining the insurance and prays that the policy be declared void for that reason. It first avers the insured obtained the insurance by misrepresenting the facts which have been heretofore detailed as to his condition; that he made said representations for the fraudulent purpose of concealing from defendant the true state of his health, etc., in or-, der to obtain the insurance; that the plaintiff, his wife, at the time knew of the insured’s impaired condition of health and fraudulently aided and abetted him in procuring the insurance,, etc. The court declined to consider this matter, otherwise than as within the influence of our statute above quoted and we believe this was proper, for after the death of the insured, the rule of the statute obtains alike with respect to willful fraud and mere misrepresentations. So much has been expressly decided and the distinction theretofore sharply made and pointed out overruled. In Ashford v. Ins. Co., 80 Mo. App. 638; Van Cleave v. Union Casualty, etc., Co., 82 Mo. App. 668, the Kansas City Court of Appeals declared that matters of willful fraud in obtaining the policy were beside the statute and might be pleaded in bar to an action thereon. B,ut the doctrine was repudiated by the Supreme Court in Kern v. Sup. Council Am. Legion of Honor, 167 Mo. 471, 486, 487, 488, 489, 67 S. W. 252, and the authority of those cases on this question expressly overruled. In one of the same cases on a. second appeal, see Ashford v. Met. Life Ins. Co., 98 Mo. App. 505, 72 S. W. 712, the Kansas City Court of Appeals receded from its former position and
“In Klostermann v. Germania Life Ins. Co., 6 Mo. App. 582, the court seems to have taken the position that the Missouri statute, which provides that an untrue statement shall not defeat the policy, unless it relates to a matter contributing to the loss, would apply, whether the statements were made fraudulently or in good faith. But in Ashford v. Metropolitan Life Ins. Co., 80 Mo. App. 638, the court held that the statute would not apply if the representations were willful or fraudulent, calling attention to White v. Insurance Co., 29 Fed. Cas. 1011, in which the Missouri statute was' construed, and wherein Judge Dillon expressed the opinion that willful or fraudulent misrepresentations would not come within the operation of the statute. Following the Ashford case, the court in Van Cleave v. Union Casualty & Surety Co., 82 Mo. App. 668, held that a willful misrepresentation would avoid the policy, if it related to a fact made material by the agreement of the parties. Similarly it was said, in Summers v. Metropolitan Life Ins. Co., 90 Mo. App. 691, that the statute did not do away with the defense of actual fraud.
“The doctrine of the Ashford and Van Cleave cases has, however, been overruled in later cases. Thus, in Schuermann v. Union Central Life Ins. Co., 165 Mo. 641, 65 S. W. 723, the court, while conceding that the stat
It seems the Supreme Court recognizes the authority of a court of equity to cancel the policy before it has become payable by the happening' of the event insured against on the grounds of willful fraud which generally obtain in the law apart from the statute, but adheres to the doctrine that after the death of the insured the liability of the company and its right to be relieved from the obligation of the policy though fraudulently induced is to be determined under the rule of the statute. [Schuermann v. Union Cent. Life Ins. Co., 165 Mo. 641, 65 S. W. 723.] Indeed, in the case cited, the defendant appealed to the chancellor for a cancellation of the policy on the grounds that the insurance was' obtained by the insured through false statements and representations known to him at the time to be untrue by incorporating a count to that effect in its answer to a suit on the policy, and the court denied the right to such relief after the cause of action on the policy had accrued. The averments of the answer in that case as reported import fraud in the ihducément but do not disclose the representations to have been material within the purview of the statute. On this question a most recent case may be cited as directly in point. A study of defendant’s refused instruction, number 2, in Keller v.
An argument is directed against remarks of plaintiff’s counsel in his address to the jury -which are said to be unfair and “inflammatory.” If the remarks were improper and the court declined to rebuke counsel, as it did, the defendant should have preserved an exception to the ruling of the court thereon and this it omitted to do. In order to obtain a review of such matters on appeal, an exception must be preserved at the time. It avails nothing to invoke tlie matter for the first time in the motion for a new trial. [Doyle v. Missouri, etc., Trust Co., 140 Mo. 1, 41 S. W. 255; Kennedy v. Holladay, 25 Mo. App. 503.]
The other questions presented in -the brief are sufficiently considered and the views of the court indicated
The judgment should be affirmed. It is so ordered.