State Ex Rel. John Hancock Mutual Life Insurance v. Allen

OGTOBEE 1924. TEEM, reí. Life Insurance Co. v. Alien. wrong- participates and alleged evidence that lie in the doing, go -remedy that is a matter of the and does not insufficiency petition. of

YIII. The of a beneficial owner the stock of corporation proceed general to for a receiver under equity powers argued. not been has The case has presented theory on the discussed. n judgment ought to be cause reversed proceedings. remanded for further All concur.

THE STATE ex rel. JOHN HANCOCK MUTUAL LIFE

INSURANCE COMPANY v. WILLIAM H. ALLEN Judges et Appeals. al., St. Louis Court One,

Division December 1924. Misrepresentations: LIFE Impersona- INSURANCE: Fraudulent tion: Equity. Cancellation: Suit in insured After the death of the equity policy a suit to cancel a life insurance maintain- not brought, death, able. When an action has been after the insured’s policy by beneficiary promised to recover the amount paid by death, to company be toit her the insurance can- alleging not convert the action at law into a suit misrepresentations procurement policy fraudulent praying for its cancellation. So that cross- where the defendant’s bill, beneficiary filed the action of the recover the amount policy, brought death, alleged the insured’s in- applied sured had tuberculosis the time he insurance falsely represented healthy that he was and had never been disease, impersonate with such afflicted and secured his brother examination, him at the medical be showed the insured to healthy, thereby fraudulently policy, obtained the and died tuberculosis, asking months few later cancelled, equity, the action was not converted into a suit 'in but made, representations impersonation, the false and if defense, jury; opinion were a matter triable and the contravene, followed, the Court of in so did not but previous [Distinguishing decisions of this court. In- Carter v. 84.] 275 Mo. surance Appeals: Findings -: Certiorari of Facts. In cer- appeals, ground opin- tiorari directed a court of on the its COURT OF MISSOURI, SUPREME State ex rel. Life v. Allen. Insurance Co. court, findings ion with conflicts decisions of this its fact upon appeal, are reviewable its announcement disputed supports judgment

the oral evidence on a issue of fact accepted the circuit court will as conclusive. So where opinion in its the Court of has said the defense that had tuberculosis at the insured time the life insurance by evidence, to him is not the oral delivered sustained judgment beneficiary being one at law the in favor of action evidence, Ap- finding supported is sufficient of the Court accepted peals as conclusive certiorari. will be Courts, 518; 2, 1, par. Certiorari, 15 11 Headnotes: C. J. Citations par. C. J. 355.

Certiorari. quashed.

Writ Leahy, Walther relator. £ Saunclers according (1) The assured uncontradicted documentary in this had tuberculosis at evidence Stephens applied for insurance. Met. the time he v. App. Burgess Pan-American 673; Mo. v. Ins. 190 Co., Life Ins. 196 315; Co., Hicks v. Met. Ins. S. 230 W. Co., App. Oglesby 150 Carter 137; v. Mo. 162; Railroad, Mo. Ry. 215; 272 Mo. Holmes, 635; v. 156 Mo. Guthrie v. Co., App Suah Brotherhood, 445; 186 Mo. Gilmore v. Modern Mystic Yeomen, v. Workers, 62; v. 196 S. W. McKinaliv N, Counsel, Pampusch Nat. 176 W. N. v. 169; 152 W. App. 529; 194 Mo. Life Ins. Co., Mutual 158; Bruck v. (2) 231 1026. S. W. Honor, Court Whiteside v. beneficiary life of a insurance filed Proofs of death policy, of a died disease the assured show that -which conclu- are of his at time he had unless-explained instant contradicted, or sive Stephens explanation. v. Life Met. case no there was Supreme Lodge, App. Castens v. 673; Mo. Ins. 190 Co., 148 App. Woodmen, v. Modern 190 57; Quentham Mo. App. Mo. App. Woodmen, 133 Modern Almond v. 33; (3) good S. 382; Co., Ins. 25-1 W. Schertz v. 199 Vol. State ex rel. Life Insurance Co. v. Allen. applicant faith of for insurance immate- bad is application, a matter of fact at the time

rial, if, delivery policy, time the assured actually suffering from a disease which or con- caused Burgess his death. tributed cause v. Pan-American Legion Ins. S. Kern 315; Co., W. v. Honor, (4) propositions applied Mo. 467. These law as undisputed record established docu- facts opinion preclude mentary evidence, set out would recovery in a common law action and a fortiori (5) proceeding equity was a action. This erroneously and the held case by the lower court as should have been tried a'common- holding law in direct conflict with the case case, which Metropolitan Life Ins. 275 Mo. of Carter case has not been overruled the later case of 292 Mb. held State ex rel. v. Trimble, Appeals, for the reason that Carter case Court of exactly proposi- the same case involve and the instant equity namely, bill to cancel cross tion, mis- of the secured fraudulent after death representations assured imper- health and as to application, insured at time of sonation of the duty appeal (6) in an case it is an appellate the entire record This court to review do in this declined to case St. Louis Court on theory case and not an was a this common-law controlling thereby ignored effect equity suit, declaring following it to court decisions appellate duty court entire review be the 302; W. Morrison, v. 236 S. Price the case: record Derry 205 Steiert, Daudt 195; 216 Mo. v. v. Fielder, Haughowont,’ 384. 207 Mo. 222; S. Gibbs v. W. for re-

Wm. and James J. O’Donohoe McNamee spondents. introducing policies

(1) By -in evidence and plaintiff proving established death of insured, MISSOURI, OF SUPREME COURT 200 State ex rel. Life Insurance Co. v. Allen. prima-facie pleading case and cast the burden of proving Lafferty on affirmative defense defendant City (Mo,) v. Cas. 229 Co., Kansas S. W. 750; Peter- (2) son 265 480. v. Mo. Railroad, evidence in the ap- case plications showed the time insured, he made policies they for the and when were delivered, insurability. in a state And defendant aban- has doned its so-called defense founded substitution. (3) proofs Admissions contained of death are not beneficiary. conclusive Holmes v. Protected Home S, App. Remfry Circle, 199 Mo. 528; v. Ins. Co., 196 W. (Mo. App.) App. 775; Yormehr v. K. O. F. M., 198 Mo. Bambergs App. 276; Tribe of Ben 159 Hur, v. Mo. 102. (4) of relator’s medical examiner is repel any, contrary sufficient to statements, if proofs of death. Keller Ins. 198 Mo. Co., 440; v. Buch- App. (5) holz v. Ins. Co., 177 Mo. Sec. R. S. 1919, warranties. And abolishes the most favorable view that can be taken relator for. misrepresentations

whether insured made of fact one jury. for the court or v. Ins. 189 Mo. Co., 70; Williams Jenkins v. Ins. 171 Mo. 375; v. Ins. Co., Hicks 196 Co., App. App. Mo. Brack 162; v. Ins. 194 Mo. Co., 529; App. Schuler v. Ins. Co., 191 Mo. 52; Clarkson v. Ins. App. App. Co., 190 Mo. 624; Co., Roedel Ins. Mo. v. 176 App. 584; Coscarella v. Ins. 175 Mo. Co., Conner v. 130; App. Lynch Mo. Ins. Association, 364; Co., v. 150 Mo. App. (6) App. 461; Salts Ins. Re- proved alleged lator neither averred nor mis- representations insured in for his “ willfully knowingly were made for a corrupt is motive.” This fatal. Pacific Supreme Mut. Life Galser, 377; v. 245 Mo. Beeler v. Metropolitan Tribe, 106 Neb. Life Ins. Lar- 853; Co. v. App. (7)’ 85 111. son, 143. The medical examiner is the agent purpose company ascertaining of the for the company insurability applicant, of the bound is judgment physical his condition. Modern his as App. Angle, 94; Woodmen v. 127 Mo. Sternaman v. 1924. 201 rel. Co. v. Allen. Life Insurance L, Ins. Co., Met. 170 N. Y. Life 13; Masonic Assn. v.. Ky. 149 Fair v. L. I. Robinson, App. 80; Met. 5 Gra. Co., Atl. So. Life Ins. 708; Hurt, 398; Co. v. 115 Va. Life Roe v. Ins. Life Iowa, 696; 37 York Assn., New Lancey v. 207 Fed. Ins. N. Moats, 481; Co., De v. 52 H. (8) ground '581. The a contract on the rescind discovery of the fraud. Relator fraud must on policies as valid on elected to treat contracts held brought. to the consideration until Wood after action was Taylor 384; v. Tel. Mo. v. 107 Mo. 565; Short, 223 Co., App. Bell v. Lierheimer v. Life Ins. Mo. Co., 374; App. (9) Ins. have 166 Mo. should case of the 'side been tried on the law 383; court. Schuermann Trimble, State ex rel. v. Life v. Mutual 641; 165 Mo. Life, Union Central cannot be heard (Minn.) Relator 195 N. Stevens, W. complain, instance tried its for the case was equity instead of at law. proceeding writ C. This

LINDSAY, Ap- judges Louis Court certiorari of the St. peals. quash record of the Court The relator seeks to judgment Appeals, of the Circuit affirmed City Cradick, of Josie in favor Louis, Court of St. plaintiff, against Life Hancock Mutual relator, John as 501.] Re- Company, [256 S. defendant. W. Insurance as the Court lator contends controlling court. of this certain decisions conflicts with proceedings and the therein, suit, The nature Appeals are as stated facts as found the Court follows: policies is- insurance two life is an action on “This instituted Greorg’e The suit was Cradick.

sued to bene- named wife, who Cradick, Josie petition usual ficiary policies. in both amount judgment, in addition for form, and asks attorney’s for damages fees policies, pay. refusal to vexatious MISSOURI, SUPREME OF COURT v. Allen.

State ex rel. Life Insurance Co. “The an al- cross-bill, defendant filed answer and procured leging party actually the insur- who George impostor; in ance the name of was misrepresentations pro- that liad policies,. was curement that deceased suffer- ing policies at tuberculosis the time he secured the directly question, and that disease had contrib- such uted to his death. also for cancellation asked Defendant policies. allegation rejñy general denial,

“The and the was attempt con- in 'an the answer was a sham used equity. latter vert an action at law into suit in The part reply stricken out. ‘‘ plaintiff jury trial court denied proceeded joined, to hear the same issues equity. plaintiff policies, aas suit in introduced proof and made of the death of establish- deceased, thus ing prima-facie her case. e policies $1000, “Each insuranc for February one dated 8, 1919, and the other March 5, George 3rd insured, Cradick, died on the 2nd or day August, Greenspan, agent

“Samuel of the defendant policies the time the were issued, testified the name George signed application Cradick was policies, presence; was written heard he questions: following deceased answer ‘No’ to the “ applicant ‘Has ever received treatment for illness in a sanitarium, cure or health resort? “ applicant anyone your family ‘Has or had ever consumption any lungs?’ disease of the appears

“From this witness’s years had known the insured for about five policies question, issuance of the during part directly of such time he lived him, across the street from signed there no doubt but what the man who Cradick. The insured policies, two industrial which, at the suggestion of wit- OCTOBER. Vol. ex Life Insurance Allen.

State rel. Co. policy; never into he a life that were converted ness, industrial sick. of to be One the knew the insured year policies had issued handwriting expert, a testified Mechim, “G. V. R. George signature on the of Cradick appear by the to be written same for insurance did ‘George another name Cradick’ on wrote the hand that exhibit. superintendent Dwyer, who was of

“Dr. M. J. objections Hospital and over 1918, testified, Koch years exceptions plaintiff’s counsel, of that about two October of which occurred on to the trial George Cradick at the above-named institu- 1920, was 6, suffering tion months from tuberculosis for several say lungs; condition at whether his that he could not then curable or incurable. The that time was witness signature postal a card with his identified it, department city report the health was made to of the a George showing West Louis, St. thirty-four aged years, View, Park was admitted Hospital September suffering 2, Koch on from 1918, tuberculosis.

“Dr. Freudenstein testified that the- W. H. he-knew George during Cradick, the latter’s deceased, lifetime, exceptions objections plaintiff’s and, over permitted testify he that he called counsel, was July suffering 4, 1919, see the deceased on found him diagnosed pleurisy side; from what he telephone called over the and informed later was police department some member that Cradick dropped Washington avenues; near Grand and dead to issue a that he was later asked certificate, funeral through police department, coroner, made such request requisition; plaintiff, that. at the Mrs. purpose of he filled a Cradick, out certificate for the proof making* showing insured death, came haemoptysis, by which is meant bleed death from a. up spitting ing without of blood. wounds, MISSOURI, SUPREME COURT-OF y. Life Insurance Allen. rel. Co. medi- counsel declined to examine these “Plaintiff’s ground cal that the witnesses, privileged. municipal

“Effie identified Miller, R. nurse, depart- report which the health she had filed in showing ment, dated June that she visited report George infor- home of Cradick, made a plaintiff, mation effect furnished her George consumption there a ease home person afflict- L. Cradick at 6525 so Park; West thirty years age. ed L. Cradick, supple- “Jennie another a Kline, nurse, identified report August made mental dated had 5, 1919, she which thirty- George aged of a visit to the home of L. Cradick, five, at 6316-A Victoria street. The visit was response report was to a of Dr. Freudenstein that there consumption place. a case of at such examining physician “Dr. John Devereaux, W. Thomas that examined defendant, testified he Cradick about the last of him and saw November, 1918, he had him that seen once; a few times thereto on policeman. the streets of as St. Louis a He mounted described Cradick man nine Thomas as a about five feet, forty weighing inches tall, and about one hundred pounds; 2nd'day February, that on the he 1919, represented person a examined who himself George Cradick, at 6525 West Park, that at that supposed time there a woman there he who was plaintiff Mrs. Cradick, case. this doctor’s This report was shown and he him, testified that he asked person representing George himself as Cradick all the questions report; contained who the man George represented himself to be Cradick was of about height weight same as he Cradick; Thomas person had the whom he examined take his shirt off, gave physical he ing him a examination of the chest, includ- lungs, percus-

the heart and both oscillation and apparently sion, and found the man he examined to be Life v. Allen. rel. Insurance Co. George representing healthy; mail himself as ever whom denied the one he Cradick, examined, hospital; told having man been a treated physician response last to a as to the him, in gone Carruthers had Dr. he had that he consulted, represent- person malaria; for treatment for if the George ing being him had himself as September hospital 21 to December have discovered afflicted he tuberculosis, with could physical made; the examination he patient have would he made of this examination which very readily; that the man examined was shown it healthy man. evidence as to in rebuttal offered

“Plaintiff allowed which should be reasonable amount attorney’s Thomas fee in the the evidence of case; also, who deceased, who Cradick, brother police never ridden a horse in testified that George, deceased, brother, that his clothes; police for a number and rode force, member of the horses very familiar years. He testified that he was also handwriting Cradick, brother L. with the signature defend- to the and that the signature company of his brother. ant formerly testified that he witness was “Another police, sergeant mounted and that Thomas policeman, deceased, that but never a mounted was George, was. tending other evidence

“There was show signature genuineness of the deceased present plaintiff then testified that she “The was by gave who examined doctor when her husband was she did not that her Devereaux; that know name death; with tuberculosis to his afflicted husband was appeared signature on Exhibit No. defendant’s that her her, by addressed to out a certificate filled which was had stated that deceased in she defendant, any prescribed for at hos- of or been an inmate never SUPREME MISSOURI, COURT OP rel. Life Insurance v. Allen. Co. pital, public dispensary, institution or and that at the gave time answer she such she knew her had husband Hospital; been an inmate at the Koch she visited him that she but not know there, did what kind supposed of an institution it at that now time, was people. an institution maintained for tubercular up further her She -testified that husband worked hospital. day he died he out of the came “Chester for Alexander, defendant, surrebuttal adjuster; he claim insurance testified purpose plaintiff on one occasion for the visited obtaining her, certificates from which time she some present that she was when her ex- denied husband was physician; and also amined defendant’s that she did Hospital. that her husband had been Koch not know into court the amount of “Defendant tendered policies.” premiums on received these Appeals filing held that the Court defend- alleging representations by fraudulent ant’s cross-bill application, imper- and a in his the insured person another of insured medical sonation pol- prayer for cancellation with a examination, equity, into one in not convert suit held did icies, denying plaintiff court erred that the trial to trial jury. holding relator asserts is in This controlling of this court Car- with decisión conflict Dependent upon 275 Mo. 84. ter v. Insurance foregoing,- the further contention that relator makes the evidence declined review as it Court of being appeal, equity, one in was bound to do suit respect, contravenes also numer- in that its and, urges controlling this court. Relator decisions of ous also, foregoing, error with the in connection holding committed Dwyer admitted Devereaux, of -Drs. plaintiff, objection incom- defendant over holding petent, inis contravention of and asserts of court. 'certain decisions this 207 y. ex rel. Life Insurance Co. Allen. foregoing the The outlines substantial features urged except, fact the the it ease, however, is length strenuously, argument and brief and for according to the relator, tary documen- uncontradicted opinion, to in the the referred evidence, insured, applied at the the insurance, time he for had tubercu- alleged disease contributed to or losis, caused knew had said disease. death, The discussion the briefs has traveled somewhat beyond proceeding. Briefly, of a certiorari confines as trial court situation follows: conceded de- claim that suit was to be heard as fendant’s one request equity, plaintiff’s jury, for denied admitted plaintiff objected, to which the and found Appeals plaintiff. for The Court of held the ac- law; tion mentary an considered remained action the docu- both as testimony admitted, and other evidence to rele- vancy incompetent weight, held hospital report physicians Dwyer, Dr. two and the that there was sufficient evidence sustain found upon judgment action of law. an as question upon I. The first one tried as at law, that the suit was filing and not virtue of the cross-bill asking policies. In this cancellation proceeding question supervisory is whether Equity. pronounced by court is the conclusion in its of this court last conflict with the conclusion controlling the same similar facts. decision, Raleigh 214; Mo. [State Allen, Inv. Co. v. rel. Reynolds, 169.] State ex rel. respective cross-

arises here character in Carter v. Insurance bills this filed, case, supra. the Court of The statement of party alleges “that ac cross-bill in tually procured case who this in the name the insurance entirely impostor,” ac we is, think, Cradick was look do, are authorized we curate. we 208 OP MISSOURI, SUPREME COURT

State rel. Life Insurance Co. Allen. at the cross-bill as shown the record. [State ex rel. Trimble, Seibel v. 299 164; State ex rel. Western Ins. Automobile Co. v. Mo. 1. Trimble, 665.] c. Both of the directed cross-bill, counts the two of counts the ap petition policies, two several state that the plication policies by George for was made Cradick; application questions by were answered policies and that the were him, issued and delivered to allegations George him. Other are that Cradick, making fraudulently procured application, another undergo by man to the examination made defendant’s falsely representing man examiner, medical the other him George self to and in that Cradick, behalf and at the request George making Cradick, instance representations required or answers as to health, in the pleaded medical examination. The cross-bill as essen misrepresentations length, matters, tial made George himself in his Cradick to his ex as past particularly isting and condition of health, toas lungs charged of the it disease which died, misrepresentations by the man like made who it was alleged George Cradick for himself substituted to be ex questions to answer the amined, and incidental thereto. brings alleged misrepre as cross-bill, drawn, George Cradick, sentations of those made him person, and those made for him substitute in the within the terms of examination, medical Section According Revised Statutes to the cross-bill the misrepresentations so had reference disease alleged contributed to or the death caused George lungs. misrep disease These Cradick, George were resentations attributable Cradich thus they given questions, himself, whether were answers presented by physical or condition consisted put person forth fo" However, examination. cross- directly alleged in this case bill does not state substitute medical examina person good apparent good tion health, health, allegations misrepresentations,- but it contains the as Vbl. ex rel. Life Insurance v. Allen. Co. past existing health as to condition

stated, George Cradick. reference cross-bill

In case the made no Carter’s misrepresentations health, to conditions putative personation founded de- person. In Carter’s case assured, another by Del- fendant did not claim that it been deceived Ridgeway cross- mar himself. the first count setting said: matters, bill certain forth defendant, imposed fraudently “But it was defendant states represented person .upon plaintiff by said and the who ‘applica- Ridgeway the be Delmar and made himself to examination.” tion for insurance and took the medical plain- charged done at the instance of the This was against Ridgeway. charged In tiff. Delmar It not the case, the in the second count of cross-bill Carter’s repre- person, falsely alleged that “a certain defendant senting Ridgeway, Del- Delmar the to-wit, himself to be petition,” plaintiff’s Ridgeway made in mar referred to application. reciting terms After the issuance the and applica- policy, the the defendant said: “That said alleged good faith Delmar tion was not in said Ridgeway beneficiary for the named benefit request instigation policy, said but made at the was and plaintiff, bene- for own use Carter, John C. pretended Ridgeway not fit.” the Delmar That did is, the for the benefit the real Delmar make plaintiff. Ridgeway,- the use and benefit of the alleged plaintiff first “caused It the count that was Ridgeway fraudulently alleged execute Delmar said to purporting testament, will to a last last will Ridgeway, person Delmar referred and testament of bequeathing devising plaintiff’s petition,” to allega- plaintiff. policy count In second to said alleged plaintiff said Delmar “caused ton was that Ridgeway whereby and testament a last will to execute plaintiff.” policy insurance bequeathed said policy delivered allegation not that the was was OF MISSOURI, SUPREME COURT State ex rel. Life Insurance v. Allen. Co. fraudulently plaintiff Ridgeway, Delmar but that possession obtained of it. The distinction between allegations cross-bill Carter’s this defendant’s material. In case case, is Carter’s complaint imposed upon by was that it had been plaintiff Del- and his real confederate, complaint is Ridgeway. mar case at bar, In the that defendant himself. was deceived alleged In that case the not issued perpetrator He fraud. was alive, and alleged perpe- prosecuting the suit. this case the policy, trator of the fraud him- obtained the issued brought. self, but was dead before the suit was The Court of its decision founded in Schuermann v. court, Union Central Life Ins. 165 Mo. 641, and in the more case recent Knights of State ex rel. National Council of & Ladies Security 292 Mo. men Trimble, 371. In the first beneficiary, tioned case the suit law having up insured policy died. defense set repre was issued reliance certain false by past made the insured, sentations as to the present by condition of health, and to his known him personated be There was false. no claim that another the examination. the medical answer insured The by powers the invoked exercise the court of its court aas equity, policy. of and asked for cancellation of the trial court held that the case triable at as action objection impaneling a law, overruled defendant’s to jury, jury. and submitted the to issues the correct appeal. that ness of was the issue on court This question upon considered the the issue, nature of the by provisions and also as affected the of Section Revised Statutes 1899, now Section 6142, Revised Stat “ utes It liability said, 1. c. 651: The of defend policy by ant the plain suit, matured the death of liability husband, tiff’s ques and that under the act in only by showing tion, could be avoided mis some ex rel. Life Insurance Co. Allen. representation misrepresentations made the insured or obtaining actually Ms death. contributed to same, jury, strictly, legal As defense triable that is'a said, designated question it whether the had"so section “Why on it tried as such or not.” Further was said: having through go have the court the useless form therein or conditions contract account of annulled on original never could issuance, connected with its further possibly defendant’s the affect liability, party the was dead now that the insured expired.” same policy And, life of the page “As far as concerns it said, at 652: line, liability account of the harm on its defendant, . insured. If terminated in suit death alleged misrepresentations actu- did not made him, they ally death, cause the insured’s contribute to the possible defendant never in a harm to could result be called no court should and for reason future, formally thing de- foolish to do the useless and possible capable claring a contract not annulled anyone, injury or form the nature future whatever might proceeding the character assume, Legion In Kern v. addressed.” court to which was the defendant fraternal Honor, organized Mas- under the laws association beneficial discussing court, This sachusetts. or issues attempted statutes be made the answer applicable, answer failed to the defendant’s held requirements and stated statutes, conform to equity.” or in under the statutes “no defense page “The said, it was 488: discussion, of this course enjoyed away no material was for statute takes competent adoption. It still com- to its pany, during assured, hut life bring aside contract in to set to a bill death, procured ground [Schuer- fraud. that it on the Reference 1. c. to 652.]” 165 Mo. Co., mann v. Ins. Keller Home Life made in Schuermann ease was Ins. SUPREME OP MISSOURI, COURT State ex rel. Life Insurance Co. v. Allen. policy. an which was action at law procuring misrepresentations pleaded

The answer in policy, as a cancellation. defense, but did not ask opinion The issues treats ease as one wherein jury. under the were, statute, submissible to a supra, the In State ex rel. v. 292 Mo. Trimble, original in defendant fraternal beneficial suit was a organized association, under of Kansas, the laws operate one authorized The suit was this State. brought at law de after the death insured. The misrepresen up making fendant set in avoidance the obtaining policy, tations did the insured deposit premiums paid. tender nor in court the City plaintiff, trial court found for the and the Kansas point judgment. Court of affirmed the most at issue court, certiorari, this was, fully while the Court of found that the evidence allegation misrepresenta sustained defendant’s as to tions, further tendered found that defendant had not deposit premiums, failing nor do successfully that could not breach on account defend promi Upon of warranties the assured. that, Banc, but not nent, issue sole, made, court, held that the as a fraternal associ defendant, beneficial requirement ation, deposit relieved from the of tender premiums, by govern terms of the statute ing such associations, and with could make the defense deposit. out such tender was, however, There pressed 'another issue, so far case, relator apparent opinion and so far in .the of the Appeals, express that this court felt constrained opinion upon that issue also. That was, what was the suit, character of the in an wherein, action sought law after the death of the insured, the defendant liability by setting up be relieved of making representations obtaining policy, asking cancellation thereof. After Mich reference to a igan page it was said at 383: 213 OCTOBER TERM,

State rel. Life Insurance v.Co. Allen. Michigan may rule “Whatever be the in the of expressly after it in has decided this State equity cancel an the death of the insured action in policy proper remedy, suit the is not the and that when company brought policy on has been the the insurance alleg- equity cannot convert the into action a case procurement misrepresentations ot ing- policy praying [Schuermann the for its-cancellation. Under v. Ins. 641.] Life 165 Union Central provided that Revised it is 6937, 1909, Section Statutes misrepresentation render be material no shall deemed contingency policy the it contributed to the void, unless payable, would the becomes which insurance the death the case of a life of insured misrepresentation policy, and the whether such contingency jury question. It is so to such contributed opinion City not clear that the Kansas is making of held that in defense relator such put position company seeking into of to cancel regard policy, insurance but relator so seems opinion. holding, If is the with such is conflict Schuermann case.” ques- of Court of presented rulings with

tion here not in conflict rulings this is in court, accordance with these controlling cases mentioned, consistent, which are rulings harmony with this case. These are in rulings ques- of the courts most other states powers right tion invoke exercise of the equity, shown, court of under the circumstances the death Mutual insured. Illustrative these is (Minn.) Life Ins. v. Co. 195 W. wherein Stevens, 913, N. many Among authorities cited. them mention are 1. c. made, Swanke, Johnson Wis. holding in the latter court case, the Minnesota many

said: “The case authori- is well considered, particular holding ties are cited. is in Its value jurisdiction country, has been restricted OF SUPEEME COUET MISSOUEI Life Insurance

State ex rel. Co. v. Allen. by jury. constitutional trial in deference unquestion in the Omberson As ably said law some hold, that, and we the absence is, so- irreparable special nature of a circumstances cause policy, a action after loss an insurance under loss, policy for maintained.” fraud, the cannot to cancel be holding of the Federal courts is the same. The fully in considered Cable States v. United [See Co., 191 U. S. 288. also Life Ins. Griesa v. Mutual (C. A.) 169 Fed. Co., 509.] Life Ins. the latter C. page 513: it was at said, case “It the settled circuit, is law this and of the Su- preme that after the Court, death assured suit in for the will not lie surrender and cancellation of upon ground it the the that was obtained fraud, company plain, the speedy, for the reason has a adequate remedy by interposing fraud the as de- upon policy.” to an at fense action the law What was subject, general the Carter’s if said force given rulings to the words out of line with the used, ruling upon former I of this court question its ast its opinion here at issue. What was in the said holding case in that the cross-bill converted the plaintiff’s equity, action at law into a suit is to be strictly application, peculiar in its confined, facts up theory cross-bill, set of which was, that the plaintiff, Eidgeway, policy pay- not Delmar obtained the able the death the latter. urges good

II. The relator bad faith appellant immaterial, insurance is if, as a delivery policy, matter of fact at the time of the suffering actually the assured was from a disease which citing Burgess or contributed to cause his death, caused Following that, v. Pan-American Ins. S. W. documentary it that the uncontradicted is contended evi- opinion referred in the dence the Court conclusively that in this case shows assured had applied time he for the tuberculosis insurance. Insurance Co. Allen. ex reí. Lifé opinion Appeals in fol- announced the The Court of its ‘‘ lowing finding, not heretofore set out: defendant to and did defense the de- undertook invoke party Devereaux, not the examined Dr. its ceased was overwhelming physician, examining when the evidence insured, that Dr. Devereaux examined to the effect he to the in- mistaken when referred that he policeman mounted instead brother sured’s as point not documen- insured.” tary, evidence On finding Recurring of the Court of but oral. concerning out, heretofore set opinion tes- finds that Dr. Devereaux Dr. Devereaux, person representing himself to him “that if the tified hospital being September with tuber- afflicted 21 to December examination have discovered he could culosis, physical examination which made; which he readily; patient have shown it would made of this ’’ healthy. But man. man he examined judgment support sufficiency to the evidence appeal upon this court. It to here for review as not purpose, Appeals for that and before the and stated find- examination its made its has court rulings (all say recent consid- ing. our to “It is safe opinion only go the Court of ered) to the will that we Appeals In other in evidence. words facts for the appeal here. This the case as not review we will examining the evidence wit- precludes us rule question were, it novo, de to determine nesses jury, take the case evidence there whether such evidence there found The Court go shown) further.” will no (stating we facts and Mo Ellison, v. ex rel. Dunham J., [Graves, 1. 654.] c. documentary re- evidence The conclusiveness urges opinion, is uncon- relator in depends ferred accuracy information, tradicted, person (called as wit- accuracy of statement MISSOURI, OF SUPREME COURT Edmondson Hotels Statler Co.

nesses) making those documents, as to the statements state of health insured, at and the time he application. go cannot into We persons of these determine of their ac- curacy or conclusive character. The Court of stating has that, done facts has shown, support ruled that sufficient evidence to there was judgment, being prop- the action law. one at Also, Appeals, er to observe here, the Court after hold- ing report supervision made under Dr. Dwyer, physician, testimony and that of another incompetent, were physicians, there was waiver as to these unless following

added the conclusion: “But aside question plaintiff prima-facie from this the action made a

being being one law, there sufficient judgment support evidence to in her need favor, we pursue questions not these further.” consideration go of what we further has need here. shown, It follows that the writ herein issued should be quashed. Seddon, G., concurs. foregoing opinion

PER CURIAM:—The of Lindsay, adopted opinion concur; All C., is as the of the court J T. Blair, J., ames P. the result.

JEAN EDMONDSON v. HOTELS STATLER COM- Appellant.

PANY, One, Division December Pantry Anticipation. Safe NEGLIGENCE: Place: Hotel Boom: It duty keep reasonably place is the of the master to safe the in which required work; grating his servants are where the pantry room, employees plaintiff floor and other great frequently required go walk, was of a hotel were enough large maintained with holes in which were to catch em- ployees’ caught previously and which time feet them plaintiff, performance regular duty preparing of her

Case Details

Case Name: State Ex Rel. John Hancock Mutual Life Insurance v. Allen

Court Name: Supreme Court of Missouri

Date Published: Dec 30, 1924

Citation: 267 S.W. 832

Court Abbreviation: Mo.