256 S.W. 505 | Mo. Ct. App. | 1923
This is a suit in equity instituted by the plaintiff insurance company on November 2, 1921, to cancel a policy of insurance in the sum of $5000 issued by plaintiff, on November 5, 1919, on the life of David H. Wiegmann, wherein the defendant, Sophia M. Wiegmann, then the wife of the insured, was named as beneficiary. *57
The petition alleges that the policy was issued to Wiegmann in O'Fallon, Illinois, where the application therefor was made by him, and that in such application he agreed as follows:
"All the following statements and answers, and all those that I make to the Company's Medical Examiner, in continuation of this application are true, and are offered to the Company as an inducement to issue the proposed policy. I expressly waive, on behalf of myself and of any person who shall have or claim any interest in any policy issued hereunder, all provisions of law forbidding any physician or other person who has attended or examined me, or who may hereafter attend or examine me, from disclosing any knowledge or information which he thereby acquired. The proposed policy shall not take effect unless and until the first premium shall have been paid during my continuance in good health, and unless also the policy shall have been delivered to and received by me during my continuance in good health."
The petition then charges that as a part of his application for the policy signed by him and attached to the policy and made a part thereof, Wiegmann, in answer to certain questions propounded to him by plaintiff's medical examiner, represented, among other things, that he had had no illnesses, diseases, injuries or surgical operations since childhood; that he had not been prescribed for nor treated nor had he consulted any physician or practitioner for the past five years; that he had never been under treatment at any hospital, asylum, cure or sanitarium. It is then averred that plaintiff, believing and relying upon the truthfulness of such representations and in consideration of the agreements contained in said application and the premium paid, and without knowledge of the falsity of any of said answers, issued the policy, by the terms of which the policy and the application attached thereto constituted the entire contract between the parties. Alleging the delivery of the policy to Wiegmann, and the payment of certain premiums by him, it is alleged *58 that Wiegmann died in the City of St. Louis, Missouri, on January 25, 1921; that proofs of death were furnished by the defendant on or about February 7, 1921; that from information contained in said proofs of death and the attending physician's certificate, plaintiff, through investigation, learned for the first time, of the falsity of the representations made by the insured in the application; that such representations were false and known to Wiegmann to be false; that he was then suffering from cancer which afterwards caused his death; that he had been treated by physicians and surgeons during the five years prior to said application; that a surgical operation had been performed upon him within said period and he had been under treatment at a sanitarium or hospital; and that had plaintiff known of such false representations it would not have issued nor delivered the policy. And it is alleged that upon discovering said facts plaintiff denied all liability on the policy, and, on or about April 28, 1921, tendered to defendant the premiums paid thereon with interest, which tender defendant declined.
It is then alleged that plaintiff has no adequate remedy at law and will suffer irreparable injury unless afforded relief in equity for the reason that the policy was applied for by and issued and delivered to Wiegmann while he was a resident of Illinois, and became an Illinois contract, governed by the laws of that State, and contains a clause providing that it shall be incontestable after two years from the date of its issuance except for the nonpayment of premiums. And a statute of Illinois, in force at the time, is pleaded, providing that a policy of life insurance and the application attached thereto and made a part thereof shall constitute the entire contract between the parties and shall be incontestable two years from its date except for non-payment of premiums, etc. And it is alleged that the highest court of Illinois, in decisions pleaded, has held that such incontestable clause of a policy of life insurance inures to the benefit of the beneficiary after the death of the insured; that the rights of *59 the parties thereunder do not become fixed as of the date of the death of the insured; and that in order to avoid the policy for fraudulent representations the insurer must take steps to assert its claim within the two-year period, even though the insured does not survive such period. And it is averred that under such decisions plaintiff would be precluded from making any defense to an action on the policy after a period of two years from the date of its issue, i.e. after November 4, 1921; that defendant has not instituted any action on the policy, and plaintiff is informed and believes that defendant intends to delay instituting action thereon until after November 5, 1921, in order to foreclose plaintiff from defending such action on the grounds set forth in plaintiff's petition.
Averring tender and deposit in court of the premiums paid, with interest, plaintiff prays that the policy of insurance be declared void and that defendant be required to surrender the same for cancellation, and for general relief.
Defendant filed a lengthy answer, but we need only notice certain averments thereof. It sets up a provision of the application as follows:
"The proposed policy shall not take effect unless and until the first premium shall have been paid during my continuance in good health, and unless also the policy shall have been delivered to and received by me during my continuance in good health; expect in case a conditional receipt shall have been issued as hereinafter provided.
"I have paid $91.35 in cash to the subscribing soliciting agent and received a conditional receipt therefor, signed by the Secretary of the Company, making insurance in force from this date, provided this application shall be approved and policy duly issued."
And it is alleged that a conditional receipt was issued to the insured by plaintiff.
The answer then charges, among other things, that under the law of Illinois, and particularly under the decision *60
in Joseph v. Life Insurance Co.,
Coupled with this answer, as a cross-bill, is a statement of a cause of action in plaintiff's favor on the policy, praying judgment for the amount of the policy, with interest, together with damages and attorneys fees as for vexatious refusal on the part of defendant to pay the loss.
Plaintiff made proof of the pertinent facts alleged in its petition. It will not be necessary to recite all thereof in detail. It was shown that in his application, made a part of the contract of insurance, the insured made the *61 statements alleged in the petition. And plaintiff adduced evidence tending to show that such statements were false and fraudulent and known by the insured to be so.
The testimony adduced by plaintiff goes to show that early in June, 1918, Weigmann, who then resided at O'Fallon, Illinois, upon the advice of his physician, Dr. Trippel, of O'Fallon, came to St. Louis and, in company with Dr. Trippel, consulted Dr. Marchildon, of that city, who examined him and upon whose advice the insured entered the Alexian Brothers Hospital in that city on June 5, 1918, where, on the following day, he was operated upon by Dr. Marchildon. Dr. Marchildon's testimony is that he found the insured had a varicocele and a small tumor of the scrotum which he operated on and removed. He testified that he made a microscopic diagnosis of the tumor and found it was of a cancerous nature; that he told the insured thereof and of the results of cancer and that the mere excision of the tumor was not enough; that the assured should be further operated upon — should undergo a radical operation. He said that because of the probability of a recurrence of the cancerous condition he explained to the insured that it would be necessary to remove the scrotum and the glands in both groins and thighs, but that the insured would not submit thereto. And the witness testified that to the best of his recollection he told Dr. Trippel that the insured had a cancer, and urged Dr. Trippel to urge the patient to submit to a radical operation.
It further appears from the evidence adduced by plaintiff that on December 2, 1919, less than one month after the issuance of the policy, the insured was again taken by his physician, Dr. Trippel, to St. Louis where he was operated on, at the Lutheran Hospital in that City, by Dr. Bonnot. Dr. Bonnot's testimony is to the effect that he operated upon the insured for a "chrondrosarcoma, or cartilaginous sarcoma, a form of cancer," located in the left groin; that he removed the cancer as far as the bone, scraped the bone and cauterized it. When asked if the insured gave "the history of how long he had been *62 suffering from any pain or trouble in this part," the witness said: "He told me he had this little tumor on his scrotum about a year before; and also dated his pain to about a month previous to the time I saw him."
Dr. Morrish, of St. Louis, testified that the insured came to him in February, 1920; that he examined the patient and found him suffering from a cancerous condition in the left groin involving the scrotum with subsequent involvement of the intestines; that he attended the insured until the latter's death, on January 25, 1921, and made up the proofs of death wherein he gave the cause of death as cancer, and also prepared a report to the Missouri State Board of Health, a certified copy of which was in evidence, in which he gave the cause of death as cancer of the inguinal gland, involving thigh, liver and intestines.
One Yearwood, plaintiff's agent who solicited the insurance, and Dr. Bechtold, plaintiff's medical examiner who made an examination of the insured, in the course of which the latter made the statements pleaded in the petition, both testified that they had no knowledge that the insured had previously been to St. Louis for an operation.
When plaintiff introduced the policy, with the application attached thereto, defendant objected to the introduction of any further testimony on the ground that under that clause of the application pleaded in the answer and quoted above, since it appeared that a conditional receipt had been issued, the contract of insurance became an absolute one, not subject to be forfeited on the ground that the insured was not in good health. This objection was overruled, defendant excepting.
It is unnecessary to notice the testimony for defendant at any great length. Dr. Trippel, as defendant's witness, testified that Dr. Marchildon told him that he had not made a pathological examination of the tumor which he removed, but said that he "suspected that it might be an epithelioma," a species of cancer, and advised the witness to keep the patient under observation; and that *63 Dr. Marchildon said that he had not told the insured what he suspected.
Defendant also introduced the testimony of a number of witnesses living in O'Fallon who knew the insured and who knew that he came to St. Louis in 1918 for an operation.
It is unnecessary to here refer to the various decisions of the courts of Illinois introduced in evidence.
The learned trial judge found the issues in favor of plaintiff and entered a decree canceling the policy; and from this judgment the defendant has appealed to this court.
There is clearly no merit in this assignment.
Under the decisions of this State it may be stated, as a general rule, that an insurance company cannot maintain a suit in equity to cancel a policy of life insurance after the death of the insured, on the ground of fraudulent misrepresentations on the part of the insured in the procurement of the insurance; and that an action brought by the beneficiary on the policy cannot be converted into a suit in equity by a cross-bill setting up such misrepresentations and praying for a cancellation of the policy. [See State ex rel. v. Trimble,
And it cannot be doubted, we think, that the evidence adduced warranted the decree below canceling the policy. Under the law of Illinois, pleaded and proved, the written application for the insurance, including the insured's answers to the medical examiner, signed by the insured and attached to the policy, became a part of the contract of insurance. [See Sec. 208-U, Chapter 73, Hurd's Revised Statutes of Illinois, 1919, p. 1739.] Touching this matter the decision in Joseph v. New York Life Ins. Co.,
Since the contract is one governed by the law of Illinois, our misrepresentation statute, supra, has no application to the case in hand. [See Coscarella v. Metropolitan Life Ins. Co.,
It is quite true that to authorize the annullment of a contract for fraud the evidence thereof must be clear, cogent and convincing. But in the instant case the proof, we think, fully meets the requirements of this rule. The judgment should accordingly be affirmed, and it is so ordered. Becker andDaues, JJ., concur. *67