Deane v. Southwestern Mutual Life Ass'n

ELLISON, J. Plaintiffs by their guardian sued defendant on a life policy of insurance issued on the life of Mattie Deane. They recovered judgment in the circuit court. The defense is based on a breach of warranties made to defendant by the deceased. These warranties relate princi-pally to the deceased’s condition of health and whether she was or had been afflicted with certain dangerous diseases and whether she had been treated by physicians for such diseases. The court refused all of defendant’s instructions on this subject as offered. The court gave one embodying the general hypothesis of defendant’s defense, but qualified it by adding the following thereto: “Provided the jury further believe from the evidence that the matters so misrepresented did actually contribute to the contingency or event on which the policy was to become due and payable, namely, the death of said Mattie Deane.” This qualification made by the court was based on-the provisions of section 5849, Revised Statutes 1889, and the question involved by this appeal is the application of the statute, which reads as follows: “No misrepresentation made in obtaining or securing a [462] policy of insurance on the life or lives of any person or persons 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 he a question for the jury.” The defendant’s claim is that the misrepresentation contemplated by the statute does not include a warranty. In our opinion the point is not well taken. The statute uses the term so as to include a misrepresentation which -is warranted to be true. We so recognized it in Thassler v. Ins. Co., 67 Mo. App. 505, though no specific ruling was made on the point. It has since been recognized, if not distinctly ruled, by the Supreme Court in Jacobs v. Ins. Co., 146 Mo. 523, 541. 2. The point is made in the brief that the misrepresentations were willful and designedly fraudulent by reason whereof defendant was induced to enter into the contract; thus seeking to bring the case within the terms of Ashford v. Ins. Co., 80 Mo. App. 638. This point was not raised by the pleadings or at the trial and can not now be considered. This case, in this respect, is governed by Christian v. Ins. Co., 143 Mo. 460, where the question of fraud inducing the action of the insurance company was not pleaded. The judgment will be affirmed. All concur.