Mayhew v. Mut. Life of Illinois

*436 COX, P. J. Action upon an accident insurance policy. Verdict and judgment for plaintiff and defendant appealed. The name of the insured was Samuel F. Wilmeshir who was a dentist living at Monett, Missouri. The beneficiary in the policy was his wife, Fern B. Wilmeshir. The insured, while insane, shot and killed his wife and himself. They were at the time visiting the wife’s parents *437 at Bourbon, Missouri. Shots were heard in their room and when parties got into the room the husband, Samuel F. Wilmeshir, was dead and his wife almost dead. She breathed once or twice, only, after parties reached the room. The plaintiff was appointed her administrator and brought this suit. At the trial, the sufficiency of the petition was attacked by an objection to the introduction of any testimony on the ground that the petition failed to state a cause of action and the appellant insists here that its objection should have been sustained. The petition, after alleging the incorporation of defendant in the State of Illinois and is authorization to do business in Missouri and the death of Fern B. Wilmeshir and his appointment as her administrator contains the following as the statement of plaintiff’s cause of action, to-wit: “Plaintiff states that on the 6th day of April, 1923, the defendant in consideration of the payment to it of certain premium and reward, made, executed and delivered to Samuel F. Wilmeshir its policy of insurance, which said policy is hereto attached and marked Exhibit ‘A’, by which it insured the life of the said Samuel F. Wilmeshir against accident in the sum of Three Thousand Dollars for the benefit of the said Fern B. Wilmeshir. Plaintiff states that on the 23d day of April, 1923, the assured, Samuel F. Wilmeshir was accidentally, externally and violently killed by a gun shot wound inflicted by his own hand while insane. Plaintiff says that the said assured had complied with the terms and provisions of the said policy in every manner and that after his death aforesaid proofs of death were furnished the said defendant as required by the said defendant. ’’ The petition then alleged demand and refusal to pay. Three objections are made to the sufficiency of the petition: First, it does not allege that the policy was in force at the time of the death of the assured; Second, it *438 does not allege that the beneficiary, Pern B. Wilmeshir, survived the assured nor her relationship to him; Third, it does not allege the terms and conditions of the policy and that these had been complied with. Of these in inverse order. The petition does allege that the policy was issued and delivered to Samuel P. Wilmeshir and that defendant thereby insured the life of said Samuel P. Wilmeshir against death by accident and that he was accidentally killed and that the assured had complied with all the terms and conditions of the policy and that after his death proofs of death were furnished defendant as required by it. We think this sufficient as against the third objection aforesaid. The second objection is that the petition does not allege that the beneficiary, Pern B. Wilmeshir, survived the assured nor her relationship to him. The fact that her administrator was suing to recover on the policy was notice to defendant that the claim of plaintiff would be that under the terms of the policy a right of action accrued to her in her lifetime. She was named as beneficiary in the policy and if she did not survive the assured or was not a person for whose benefit he could legally procure a policy — those were matters of defense, and while the petition would have been in better form had it alleged both the survivorship and the relationship, a failure to specifically make those allegations should not be regarded as fatal after verdict. The first objection, to-wit, that the petition does not allege that the policy was in force at the time of the death of the assured is of a more serious import. We do not, however, think it fatal after verdict. Had defendant filed a demurrer to the petition and stood on it, its position here would be much stronger. The answer admits that defendant issued the policy sued on, then alleged it was void because of fraud and misrepresentation in procuring it. This was equivalent to an admission that the policy was in force at the time of the death of the assured unless the alleged fraud and misrepresentation *439 voided it. The omission of an essential allegation in a petition may be cured by an admission in an answer or by the answer putting in issue the omitted allegation of fact. [Davidson v. Laclede Land & Improvement Co., 253 Mo. 223, 161 S. W. 686; McIntyre v. Federal Life Ins. Co., 142 Mo. App. 256, 265, 126 S. W. 227; Havs v. Miller’s Estate, 189 Mo. App, 72, 77-78, 173 S. W. 1096.] The only objection to the petition at the trial was made by an objection to the introduction of any testimony. This form of attack on a petition, while allowable, is not favored by the courts and after verdict all reasonable intendments will be indulged in favor of sustaining it. The ultimate purpose to be accomplished by the allegations of a petition is to furnish a basis for a judgment and to notify the defendant what he must defend against. After answering in this case and admitting it issued the policy sued on and then putting its validity in issue by an allegation of fraud and misrepresentation in procuring it and trying the case on that theory, we do not think defendant is now in position to complain that the petition failed to specifically allege that the policy was in force at the time of the death of the assured. [See also Howe v. Insurance Co., 75 Mo. App. 63, 66.] While the petition in this case is not well drawn, we think it sufficient after verdict. It is next insisted that a demurrer to the testimony should have been sustained. The policy provided that statements in the application for the policy were warranties and if untrue, should avoid the policy. In answer to questions the assured had stated in his application that he had not received medical attention within five years except to have his tonsils removed and that he was then in good health. In the death proofs, the statement of the physician who attended him just before he committed suicide and who was called immediately after the shot, stated that the remote cause of death was insanity following “flu” and that he had received his information as to the “flu” from the deceased. He had never ’ *440 treated the deceased for “flu.” hut there was other evidence in the case that deceased had had a slight attack of “flu” or influenza in February before this policy was issued on April 6th. The physician who made the statement in the death proofs testified at the trial and then gave it as his opinion that deceased was insane when he shot himself and also that such insanity had been produced as the result of an attack of influenza in February. There was other evidence that the attack of influenza was light and only confined him to the house for about one week on or near the first of February and that he had recovered before he applied for this policy. There was nothing about him to indicate insanity or a mental affliction of any kind until about five to eight days before he shot himself. There was evidence that influenza may and often does produce insanity but it is not confined to any particular form of insanity. Deceased had illusionary insanity which may result from influenza and, of course, may result from other causes. It was shown conclusively at the trial that the assured was insane when he shot himself and the issue fought out on the evidence was whether his insanity resulted from the attack of influenza in February before the policy was issued or whether it was an affliction which came upon him suddenly and was produced from some cause other than influenza. There was abundant evidence to have justified a finding that insanity resulted from the influenza but we are-not prepared to say that it was so conclusively shown as to have required a peremptory instruction for defendant to have been given. This policy provided that it should not apply to any injury by any accident while the assured was insane. It is now well settled in this State that suicide by a person while insane is death by accident and we have a statute, section 6150, Revised Statutes 1919, which forbids life insurance companies from contracting against liability for death by suicide while insane unless suicide was contemplated when the application for insurance wgs *441 made and this statute applies to accident insurance companies. [Logan v. Fidelity & Casualty Co., 146 Mo. 114, 47 S. W. 948; Aufrichtig v. Columbia Nat. Life Ins. Co., 298 Mo. 1, 249 S. W. 912; Wacker v. National Life & Acc. Ins. Co. of Nashville, Tenn., 201 Mo. App. 586, 213 S. W. 869.] Contention is made that the petition does not allege facts to show that this policy was a Missouri contract and hence evidence to show that fact was inadmissible and since the policy provided that it should be suspended for all purposes upon the assured becoming insane, no recovery could be had. This is harking back to the petition which we have held is good after verdict. The policy in this case, while issued by an Illinois company, provided that it should not be in force until delivered to the assured while in good health and the first premium paid. It was conceded that the first payment of premium had been made and this was tendered back at the trial. The assured lived at Monett, Missouri,' and delivery took place there and hence this policy was clearly a Missouri contract and is to be construed under the Missouri law. [Lukens v. International Life Ins. Co., 269 Mo. 574, 191 S. W. 418.] Objection is made to the instructions. It is said that No. 1 for plaintiff is erroneous because it omits all references to the defenses offered by defendant. A mere reading of this instruction will show that it does refer to the defenses and is not open to the criticism levelled against it. The following instruction asked by defendant was refused: “The court instructs the jury that if you find and believe from the evidence that deceased Samuel F. Wilmeshir was insane at the time he made application for the policy of insurance or at the time said policy was delivered to him, then your verdict must be for the defendant.” This instruction had very little evidence on which to base it. It might have done no harm had it been given but we do not think its refusal reversible *442 error. The real issue in the case was not so much the time at which the deceased really became affected with insanity but was whether the insanity of deceased, which it was conceded existed when he shot himself; was caused from the influenza which attacked the deceased in February or whether it came from some other cause. If the influenza did not cause the insanity then there was no evidence on which the jury could have found that the assured was insane when the policy was issued or when it was delivered. The jury were told in other instructions that if they should find that the assured had stated in his application that he was then in good health and should find that he was not in good health at said time or at the time when the policy was delivered, but was then suffering from the effects of influenza and that said influenza either caused or contributed to'the cause of his death, then they should find for defendant. The fact whether the influenza affected him in any way at the time he made the application or at the time the policy was delivered was not an issue, but the real issue in this case was whether, as a matter of fact, the, influenza brought about the insanity with which he was afflicted at the time of his death and whether the influenza in that way contributed to his death. That issue was clearly submitted to the jury. Other refused instructions were along the same line and the same holding applies to them also. We find no reversible error and the judgment will be affirmed. Farrington and Bradley, JJ., concur.