Bruck v. John Hancock Mutual Life Insurance

ALLEN, J. This is an action upon two policies of life insurance, for $250 each (less unpaid premiums for the remainder of the year if -death should ensue within the first “policy year”), issued by defendant insurance company on August 14, 1912, upon the life of one Fred W. Bruck, in favor of plaintiff, mother of the insured, named as beneficiary therein. The insured died on February 8, 1913. Plaintiff thereupon duly made proofs of death, and demanded of defendant the payment to her of the respective amounts provided by the policies to be paid according to their terms; and upon defendant’s refusal to comply with .such demand plaintiff instituted this suit. The petition is in two counts based upon the respective policies. The answer is a general denial, coupled with a plea to the effect that the insured obtained the issuance of the policies sued upon by false and fraudulent representations, and the concealment of material facts. — 534 — The trial below, before the court and a jury, resulted in a verdict for plaintiff for $244 and interest —together with an award of $37.50 for attorneys ’ fees as for vexatious refusal to- pay — upon each count of the petition. Prom a judgment accordingly entered the defendant prosecutes this appeal. Plaintiff, to sustain the issues on her part, introduced the policies sued upon, and showed the. payment of all premiums due thereon, the death of the insured on February 8, 1933, and the demand thereafter made upon defendant and the latter’s refusal to pay. And plaintiff adduced testimony respecting the value of the services of plaintiff’s attorney in the action. Testimony of plaintiff on cross-examination, and that of plaintiff and other witnesses in her behalf adduced in rebuttal, will be noticed later. In defense defendant introduced in evidence the application of the insured, upon which the policies were issued, tog’ether with the certificate of defendant’s medical examiner who examined deceased to ascertain whether or not he was an insurable risk. In his application the insured stated that he was then in good health, had no bodily defect or infirmity, had “not had within five years any sickness, ailment, disease (bodily or mental),” and that neither he nor any member of his family had ever had consumption. Defendant’s medical examiner, in his certificate, stated, among other things, that the appearance of the insured indicated health and vigor; that there was “no indication by auscultation and percussion of any disease of respiratory organs;” that there was nothing in the applicant’s appearance, mode of living, etc., which, in the opinion of the medical examiner, would tend to shorten duration of life; and that he “without reservation” recommended the applicant as “safely insurable.” Defendant put in evidence the proofs of death submitted by plaintiff or in her behalf when making claim to the insurance provided by the policies to be paid her. In the signed statement of plaintiff, filed as a part of the proofs of death, she stated that the insured — 535 — died of pleurisy, and that he first complained of ill health about four months prior to his death. Attached thereto was the certificate of the physician who attended the insured in his last illness, Hr. Kinner, wherein phthisis pulmonalis was given as the cause of death. In this certificate Dr. Kinner stated that he could not definitely tell when the insured’s health was first impaired, but that, from “history of the case,” it was about four or five months prior tp death. With the proofs of death, and as a part thereof, was the certificate of a Dr. Diehl who therein stated that he had attended the insured on March 6 and March 9, 1912, at which times insured was suffering from bronchitis; that on March 13, 1912, he examined the patient for “T.B.” (shown to mean tuberculosis) which he “found positive.” And that he “turned the patient over to Dr. E. R. Ward.” Drs. Kinner and Diehl testified as witnesses for defendant, and, apart from the proofs of death, defendant introduced in evidence a written statement signed by the insured in'’March, 1912, in making application to another insurance company for a sick benefit under a policy of insurance, in which statement, in answer to an inquiry as to the nature of his illness or disease, this answer of insured appears, viz: “Incipiens (sic) tuberculosis.” Attached to this was a statement or certificate of Dr. Ward wherein, among other things, he stated that the applicant was afflicted with “incipitus tuberculosis.”. It is unnecessary to notice defendant’s evidence in further detail. . Plaintiff testified that the condition of her son’s/ health was good at the time of the issuance of the policy, and that he died of pleurisy. She stated that Dr. Diehl prepared the proofs of death, though she signed the statement appearing over her signature. Her testimony and that of other witnesses intimately associated with the insured is to the effect that he, at least prior to the issuance of the policies, was a strong, healthy and vigorous young man who toqk an active — 536 — part in athletic sports, and tended at least to show that he was not then suffering from tuberculosis.- The only assignment of error pressed upon us relates to the ruling of the trial court on defendant’s demurrer to the evidence. It is argued that the demurrer should have been sustained for the reason that the physicians’ certificates, filed as a part and parcel of the proofs of death, constitute an admission by plaintiff that the insured died of tuberculosis, and that he had been afflicted with this disease -prior to applying for the issuance of the policies.; that this admission is wholly uncontradicted and unexplained and conclusively establishes the fraud charged in obtaining the policies, operating to defeat a recovery as a matter of law. And it is further argued that the admission of the insured made in his application to another insurance company for sick benefit, shown in evidence, is in like manner fatal to plaintiff’s, case. Our statute governing the matter in hand, viz., section 6937, Revised Statutes 1909, provides: “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 he 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.” This statute has been before our courts in numerous cases. The reason for its enactment is well stated in Schuermann v. Insurance Co., 165 Mo. l. c. 649, 650, 65 S. W. 723, as follows: “The act in question was in no sense intended as a general restraint upon the power of the courts of equity by proper proceedings to relieve against actual fraud, perpetrated or attempted against insurance companies doing business in this State, by parties seeking insurance; but its manifest aim and object was to check and prevent the wrongs and injustice that too frequently befell the relatives and friends of the insured after their death, resulting from the growing — 537 — evil practiced by life insurance companies, of calling for answers to all manner of immaterial questions from the applicant for insurance, hearing the remotest degree, if at all, upon the risk to he assumed, and then by a general provision, incorporated in' the policy to be issued, declaring that if any one of the answers be untrue, or not as stated, it should avoid the policy, which .condition, without legislative aid, the courts were compelled to enforce without regard to whether the particular answer that was shown to be untrue was material -to the risk or pot, or whether the untrue answer was the result of an innocent mistake or an intentional wrong.” In a vast array of cases similar in their essential facts to that now before us, our courts have held that whether the matter alleged to have been misrepresented “actually contributed to the contingency or event on which the policy is to become due and payable” is a question for the jury. Among these are: Kern v. Legion of Honor, 167 Mo. 471, 67 S. W. 252; Keller v. Insurance Co., 198 Mo. 440, 95 S. W. 903; Conner v. Annuity Association, 171 Mo. App. 364, 157 S. W. 814; Coscarella v. Insurance Co., 175 Mo. App. 130, 157 S. W. 873; Roedel v. Insurance Co., 176 Mo. App. 584, 160 S. W. 44; Buchholz v. Insurance Co., 177 Mo. App. 683, 160 S. W. 573; Clarkson v. Insurance Co., 190 Mo. App. 624, 176 S. W. 437; Schuler v. Insurance Co., 191 Mo. App, 52, 176 S. W. 274. The statute applies alike to warranties and representations (Keller v. Insurance Co., supra), and' draws no distinction between innocent and fraudulent misrepresentations (Kern v. Legion of Honor, supra, overruling Ashford v. Insurance Co., 80 Mo. App. 638 and Van Cleave v. Union C. & S. Co., 82 Mo. App. 668). But appellant here relies upon admissions of both plaintiff and the insured, which it is said stand unexplained and uncontradicted in the record, with nothing to rebut or repel the force thereof, whereby it is conclusively admitted not only that the representations of the insured in his application for insurance were false, — 538 — but that the matter so misrepresented was one which contributed to the contingency or event upon which the policy was to become due and payable, to-wit, the death of the insured. And it is contended that under such circumstances there is nothing, to go to the jury, and that it is the province and the duty of the court to give effect to the admission or admissions and deny a recovery as a matter of law. In support of this contention appellant’s learned counsel rely upon the recent opinion of- this court in Stephens v. Metropolitan Life Ins. Co., 190 Mo. App. 673, 176 S. W. 253. It is true that proofs of death furnished to the insurer by a beneficiary in accordance with the provisions of the- policy, when making claim to the insurance therein provided to be paid, are admissible in evidence against the beneficiary in a suit upon the policy. Admissions therein contained, however, ” are but prima facie binding upon the beneficiary as admissions against interest, and may be overcome by proof adduced tending to explain or relieve against them. [See Queatham v. Modern Woodmen of America, 148 Mo. App. 33, 127 S. W. 651; Bamberge v. Supreme Tribe Ben Hur, 159 Mo. App. 102, 139 S. W. 235; Stephens v. Insurance Co., supra.] In no event can an admission of this character be conclusive against the plaintiff, as a matter of law, thereby in effect taking the case out of the operation of the statute, supra, unless it be in a case where nothing whatsoever appears in evidence tending in any way to explain or contradict the admission or impair the force and effect thereof. In the Stephens case, supra, under the facts presented, and upon the authority of the cases there cited (190 Mo. App. l. c. 680) we held, indeed, that an admission of the plaintiff in the proofs of death furnished by him was, under the circumstances of the case, conclusive against him, and operated to preclude his recovery upon the policy. But the Stephens case, upon its facts, differs so widely from that now before us as to render the decision therein of no value as a precedent here in appellant’s favor. In the Stephens case — 539 — there was a provision in the policy to the effect that the insurer assumed no obligation thereunder unless on the date of the policy the insured were alive and in sound health. Such provisions in policies are now held to be affected by our statute, supra, but may operate to defeat a recovery even in the present state of our law, provided it appear that the insured, at the' time of the issuance and delivery of the policy was suffering with the malady which resulted in his death. [See Stephens v. Insurance Co., supra, l. c. 678.] And the> facts in the Stephens case were that the insured entered a hospital in the City of St. Louis on November 16, 1909, having, about two weeks prior thereto, applied for the insurance in question. The policy was not issued until November 29, 1909, at which time the insurer’s agent without knowledge of the condition of the health of the insured, delivered the policy to plaintiff, the ■ beneficiary, who was fully cognizant of the fact that the insured was then confined in a hospital and near death’s door. On the following day, to-wit, November 30, 1909, the insured died. In making proofs of death the plaintiff, over his own signature, stated that the insured entered the hospital November 16, 1909, and remained there under treatment until his death fourteen days later, and stated also that the insured was suffering from and died of cirrhosis of the liver. Attached to this statement of.the plaintiff and constituting a part of the proofs of death, was a certificate of the attending physician who treated the insured in his last illness, wherein the physician stated that the insured entered the hospital on November 16, 1909, suffering from cirrhosis of the liver and myocarditis for which he was there treated and from which he died. There was nothing to explain or contradict these admissions, or to impair the force and effect thereof. It is true that the plaintiff said that he signed the statement without reading it. But he did not undertake to explain it, and no particle of evidence of any nature whatsoever appeared in the record to contradict the truth of these admissions. Under these — 540 — circumstances we held that the admissions in the proofs of death conculsively showed that the insured was not in sound health at the time of the delivery of the policy to the beneficiary but was in fact then suffering from the very disease which caused his death one day later. The Stephens case did not turn upon the question of false representations of the insured made in applying for the policy. In the course of the opinion it is said by Noutoni, J: “There is evidence tending to prove that insured was not suffering from such disease when the application for the insurance was made, two weeks before entering the hospital.” As it is distinctly stated that evidence appeared tending to prove that the insured was not, at the time of his application, afflicted with the disease which resulted in his death, any question as to false representations on his part in procuring the insurance would undoubtedly have been a matter for the jury. In the case before us the signed statement filed by plaintiff as a part of the proofs of death states that the insured died of pleurisy, and that the duration of the illness was about four months, and so plaintiff testified. The certificate of the attending physician, filed as a part of the proofs of death, on the contrary stated that the insured died of phthsis pulmonalis, the physician stating that, so far as he could tell from the history of the case, insured’s health became impaired four or five months prior to death. The other certificate appearing with the proofs of death tends to show that an examination of the insured revealed that he was afflicted with tuberculosis prior to the application for the policy and that he was treated for this. It cannot be said that these proofs of death constitute such an admission against interest as to be conclusive upon plaintiff in this action. Plaintiff’s own statement in terms contradicts that of the attending physician as to the cause of death. Whatever value — 541 — it may be proper for the triers of the fact to place upon this certificate of the attending physician, as opposed to the statement of the beneficiary, it cannot be said that the former entirely overcomes the effect of the latter, effacing it altogether, and operating as a conclusive admission that the insured died of tuberculosis. It is true that we said in the Stephens case' that the matter could there be determined upon the physician’s certificate, but there the plaintiff’s statement did not in terms contradict the physician’s certificate, but fully corroborated it. Had such contradiction existed in the proofs of death themselves, a different case would have, been presented. And on the other phase of the matter, i. e., as to whether or not plaintiff was suffering from tuberculosis when he applied for the policy, or had suffered therefrom prior thereto, the proofs of death are not conclusive as admissions against plaintiff. Plaintiff’s signed statement is to the effect that the insured’s health first became impaired about four months prior to death, and the certificate of the attending physician, so far as it goes, tends to support this. Whatever may appear as to this elsewhere in the proofs of death, it is certain that it does not appear entirely without contradiction that prior to his application the insured was suffering from the disease which resulted in or contributed to cause his death. But aside from all this, and adjudging the case as one in which the proofs of death themselves' contain nothing to contradict the admissions of the physicians’ certificates, the recitals in the proofs of death are here sufficiently contradicted by other evidence in the record to make the case one for the jury under our law. In the first place, the certificate of defendant’s own medical examiner is to the effect that he examined the insured at the time of the application for the policies and found no “indication by auscultation and percussion of any disease of respiratory organs;” that there was nothing in the insured’s appearance, mode of living, habits, etc., indicating a predisposition to dis — 542 — ease which would tend to shorten the duration of life. Ajid the medical examiner recommended the insured “without reservation” as being “safely insurable.” It is true, as appellant says, that the medical examiner testified at the trial that he refrained from making a more thorough examination of the insured because of the latter’s answer, in his application, respecting his condition of health. But this affords nothing more than the basis for an argument to be addressed to a jury, and in no wise affects the ruling on the demurrer to the evidence. This testimony could by no means entirely overcome the effect of the certificate of the medical examiner, who had full opportunity to examine the insured and who did examine him and found nothing physically wrong with him. Indeed we but lately held in Clarkston v. Metropolitan Life Insurance Company, 190 Mo. App. 624, 176 S. W. 437 (wherein the opinion was rendered on the same day as was that in the Stephens case), that the report or certificate of the insurer’s medical examiner, reciting that he had examined the insured’s respiratory .organs and found them in all respects sound, and that the insured possessed sound health and a good constitution, was alone sufficient, as evidence contradicting an ádmission of the character here- in question, contained in the proofs of death, to take the case to the jury. In that case the certificate of one of the attending physicians, made a part of the proofs of death, stated not only that the insured died of tuberculosis but that he was suffering therefrom several weeks prior to his application for insurance. This, as an admission of plaintiff against interest, was held to be so far repelled by the certificate of the insurer’s medical examiner alone, as •to make the question involved one for the jury. [See, also, Conner v. Annuity Ass’n; Coscarella v. Ins. Co.; Buchholz v. Ins. Co., supra.] Furthermore is has frequently been held that the testimony of persons who' have associated daily with the insured may not be cast aside as wholly devoid of probative force and evidentiary strength on the ques — 543 — tion of the condition of the health of the insured at the time or prior to the application- for insurance. [See Conner v. Annuity Ass’n supra.] What we have said above as to the admissions contained in the proofs of death apply, with at least equal force, to the admission of the insured alleged to have been made when applying for sick benefits under a policy issued by another company. In view of the other facts shown in evidence, in no event could this admission he held to he conclusive so as to operate to defeat a recovery upon the policies as a matter of law. It is quite clear that the case made w,as one for the jury, and that the trial court could not have sustained a demurrer to the evidence without doing violence to both the letter and the spirit of our law. It is true that there is much and very persuasive evidence in this record tending to show that the insured was, at the time of his ' application, suffering from the disease which resulted in his death less than six months later, and tending- to convict him of false and fraudulent representations in making application for the policies. But it was not within the province of the trial court to pass judgment upon the facts, and we likewise are without power so to do. No point is made respecting the award of attorney’s fees as fo.r vexatious refusal to pay, and that matter need not be touched upon. It follows that the judgment should be affirmed, and it is so ordered. Reynolds, P. J., and Nortoni, J., concur.