Opinion
No. 28157.
July 3, 1951. Rehearing Denied September 7, 1951.
APPEAL FROM THE CIRCUIT, ST. LOUIS COUNTY, RAYMOND E. LaDIERE, J.
Kenneth Teasdale, Henry C. M. Lamkin, Charles E. Dapron, Jr., St. Louis, Cobbs, Blake, Armstrong, Teasdale Roos, St. Louis, of counsel, for appellant.
Flynn Parker, Francis C. Flynn, Norman C. Parker, St. Louis, for respondent.
The plaintiff is the beneficiary under an industrial policy of insurance, upon the life of her son, issued by the defendant company. The action originated in the Magistrate Court of the City of St. Louis, where the plaintiff prevailed, and the defendant appealed to the circuit court. There, a jury was waived and the trial was to the court, which found for the plaintiff in the total sum of $380.21. It is from this judgment that the defendant prosecutes this appeal.
The petition alleged that the policy was issued by the defendant on January 26, 1949, and that the terms of the policy were complied with by the insured, who died on April 11, 1949.
The defendant's answer admitted the issuance of the policy and recited that the policy contained a clause which is as follows: "Policy when Void. — If on the date of this policy the Insured was in unsound health, or had prior to said date any pulmonary disease, cancer, sarcoma, or any disease of the heart or the kidneys and if such condition of unsound health or such prior disease actually contributed to the Insured's death or disability as defined herein, or if prior to said date the Insured was rejected for insurance by this or any other insurer, or if, within two years prior to said date, the Insured was attended or treated by any physician or other practitioner, or attended any hospital or institution of any kind engaged in the cure or care of bodily or mental disease, for any serious disease, complaint or surgical operation, this policy shall be voidable by the Company either before or after any claim, unless reference to each such rejection, attendance, treatment or prior disease is endorsed hereon by the Company or unless this policy is incontestable at the date of death of the Insured. The Company shall not be presumed or held to know of any such prior rejection. If this policy does not take effect, or is voided by the Company, the Company shall refund the premiums paid."
By way of defense it is asserted that the insured was afflicted with rheumatic fever and was in a condition of unsound health at the time of, and for two years prior to, the issuance of the policy. It avers that the insurer was not aware of the condition at the time of the issuance of the policy.
The policy was applied for when defendant's agent, Hauhart, called at the Wood home on January 10, 1949. At that time there was present the plaintiff, Clarine Wood, who is the insured's mother and beneficiary, Carl Wood, the insured's father, and Jimmy Wood, age eleven, the insured. The application contained the following printed questions and the answers which were written in by the agent:
"Is the proposed insured now in sound health? Yes.
"Has the proposed insured had within five years any ailment or disease, or any injury or surgical operation? State full details. No.
"Has the proposed insured ever been treated for any ailment or disease by a physician or other practitioner, or in any hospital, dispensary, clinic or sanitarium? State full details. No."
Jimmy had been suffering from rheumatic fever for some time, and, according to Mrs. Wood, she told the agent of this, and he replied that the boy looked "good enough to him". Mr. Wood testified that he showed the agent some work that Jimmy had done under a social service program for children suffering from rheumatic fever. Mrs. Wood also stated that they had a policy which had been previously issued by defendant on Jimmy's life and it was cashed in at the time the application was made. She stated that she told the agent she did not want to cash in the policy unless a new one could be issued. Mrs. Wood said that at the time the application blank was being filled in they were all standing, and that while she saw the agent write upon the form she did not see what he was writing. Her husband stated the agent did not ask any questions but filled out part of the blank which he signed. The defendant's agent testified that he did not know that the insured was suffering from rheumatic fever and that he got the facts set forth in the application from the parents.
The agent also testified that the previous policy on Jimmy's life had been cashed in prior to the application for the policy under consideration.
It is first contended that the beneficiary cannot rely on a disclosure of Jimmy's condition to the insured's agent because that was not pleaded, and the court erred in receiving and considering such evidence. However, the case originated in the magistrate court, where, under Section 517.050, R.S.Mo. 1949, no formal pleadings are required. It was tried on appeal in the circuit court and Section 512.310, R. S.Mo. 1949, provides that the trial in the appellate court shall be governed by the practice in such court. This section is the same in effect as Section 2747, R.S.Mo. 1939, Mo.R.S.A. § 2747, which governed appeals from justice courts, and it has been held that while the trial in the circuit court is conducted according to its practice, questions arising there as to pleadings must be determined by the rules applicable to pleadings before the magistrate court. Butler v. Missouri Ins. Co., Mo.App., 187 S.W.2d 56; Steinbruegge v. Prudential Ins. Co., 196 Mo.App. 194, 190 S.W. 1018; Wendleton v. Kingery, 110 Mo.App. 67, 84 S.W. 102.
It is next asserted that the plaintiff's evidence is not credible, but the record does not support this contention. It is true that Mrs. Wood testified that she signed the application when it was in fact signed by her husband. Such a discrepancy may honestly arise under the circumstances, for she was testifying a year and a half after the application for the insurance was made. It is also true that she saw the agent write down answers to questions he asked her, but she said she did not see the answers that he had written. This does not appear inconsistent or make her evidence in any other respect incredible.
The third point upon which the defendant relies is that the evidence discloses collusion between its agent and the plaintiff in submitting to it a false application for the policy. The defendant called its agent, who was still in the company's employment as assistant manager, to the stand. He testified that he did not know of and was not informed of Jimmy's condition. He said that he put down on the application form the answers given to him by the insured's parents. This was the only witness called by the defendant, and therefore its only evidence was that its agent was deceived and not that he had been in collusion with the plaintiff to deceive the defendant.
The only factual issue presented for determination was whether or not the parents of the insured gave false information to the agent. Wood said that the medical questions on the blank had not been filled in, but he also stated that the front of the form was filled in, and the questions relating to the health of the insured are on the front of the application. It is clear, however, that, if the plaintiff and her husband are to be believed, Wood simply signed the application as prepared by the agent and without any knowledge of what was written upon it. This was done after both the parents had informed the agent of the insured's illness. The law governing such a state of facts is covered by the case of Longo v. John Hancock Mutual Life Insurance Co., Mo.App., 142 S.W.2d 871, loc. cit. 874, wherein we held:
"It is well settled that where the insurer or its duly authorized agent or representative, acting within the scope of his authority, and absent fraud or collusion between him and the applicant, had knowledge of the true state of the applicant's health at the time the contract was entered into, the policy will not be voided, even though the application may have contained false statements with respect to matters which ultimately caused or contributed to the death of the insured. Hodges v. American National Insurance Co., Mo.App., 6 S.W.2d 72; Woodson v. John Hancock Mutual Life Insurance Co., Mo.App., 84 S.W.2d 390; McGee v. Capital Mutual Ass'n of Jefferson City, Mo.App., 116 S.W.2d 204.
"This for the reason that the knowledge of the agent, acting within the scope of his authority, is no less the knowledge of the company, so that where the agent himself fills out the application, the company may not, after the risk has attached, contend that it issued the policy in reliance upon the fact that the applicant had made the representations contained in the application, when it was at all times to be charged with knowledge to the contrary. Sappington v. Central Mutual Insurance Ass'n, 229 Mo.App. 222, 77 S.W.2d 140; Yancey v. Central Mutual Insurance Ass'n, Mo.App., 77 S.W.2d 149."
Similar holdings are to be found in State ex rel. Prudential Ins. Co. v. Bland, 354 Mo. 495, 190 S.W.2d 234; Colegrove v. John Hancock Mut. Life Ins. Co., Mo.App., 153 S.W.2d 750; Friedman v. John Hancock Mut. Life Ins. Co., Mo.App., 168 S.W.2d 956.
Under the law and the evidence, the matter simply comes down to the question of the credibility of the witnesses, and upon that question we defer to the trial judge who saw and heard them.
For the reasons stated, it is the recommendation of the Commissioner that the judgment be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.