
    Robert Ducros. .vs. Missouri State Life Ins. Co.
    No. 7996.
    Court of Appeal. Parish of Orleans.
    Dlnkelsoiel. J.
   Dlnhelsplel. J.

Plaintiff claims that defendant, a Missouri corporation, domiciled in the City of St. Louis, State of Missouri, hut whioh is authorized to, and actually oonduts business \of life insurance in this State, and whioh has designated the Secretary of State of Louisiana as it's agent for the service of legal process in conformity with Section 1 of Article 3 of Act 105 of 1898, is justly and truly in-bedted to plaintiff in the full sum of $418.75, with legal interest from October, 30th. 1919, for this:That on October, 11th. 1915, defendant company issued to plaintiff three seperate policies of insurance on his life, bearing different numbers, for different amounts, in all amounting to the sum of $35.000., for whioh premiums on the several policies were paid from time to time and for a period of upwards of. five years.

That said policies were issued, and the amount of the annual premiums, in each case, based on an application nsu&s made and signed by plaintiff in whioh he dhlared his age to be 34 years, but that in point of fact, and at the time the policies were issued and the applications made he vacas was only 38 years of age, that he overstated his age in said applications for purely private business reasons wholly disoonnected from his application for insurance.

® That overstatement of age, aforesaid, do( not visiate said policies; the contract of insurance in eaoh oase specifically providing for such oontingenoy; and that said does overstatement of age not oonstitue a fraud on said def-endat company, or in any manner prejudice it's rights, the maximum of defendant's liability being fixed in each policy, by the face amount thereof. "

* That under date of October, 30th. 1919, the business exgenoiee which originan controlled, him having terminated, plaintiff advised said defendant oompany of the overstatement of age, gave it his oorreot age, and requeted an adjustment of the policies and a return of the eoess or un-erned premiums whioh he itemizes totaling $418.75,

And, alleging further that, the overstatement of age did not secure to plaintiff greater protection, or increase defendant's liability, therefore, the exoess premiums paid were wholly without consideration, defendant oompany not having given anything in return, and that therefore he was entitled to a return of said exoess or unearned premiums. And, attaching to his petition and making part thereof a photographic oopy of one of the policies and the application therefor, and avering that all three policies are indentical in terms, the only difference being in faoe amounts, and that all were issued on identical application, and avering amioable demand prayed for judgment.

Defendant excepted .to the petition on the ground that same does not reoite, set out, or disclose a right or cause of action, and that same is vague and indefinate. This cause is claimed to have been and to be res nova. Civil Code, Art. 2303. " He who has paid throught a mistake, believing himself a debtor, may reclaim what he has paid."

Code of Praotioe, Art. 18s- * He who pays through error what he does not owe, has an action for the reparation of what he has thus paid, unless there was a natural obligation to make suoh payment; but he must prove that he paid through error, otherwise it shall be presumed that he intended to give". Citing numerous authorities. Again, Civil Code, Art. IS 1799s- " It is a presumption of law that in every contract eaoh party has agreed to confer on the other the right of judicially enforcing performance of the agreement, unless the oontrary is expressed or.may be implied".

or may bo implied".

ArtlSOl, Codo of Praotioe:- * The party proposing shall bo presumed to continué In the Intention, whloh his proposal expressed, If on receiving the unqualified assent of him to whom the proposition Is made he do not signify the ohange of of his intention." Joyoo on Insurance, Vol. 5. p. 8580. Par. 14ol, B, reads as follows:- B ini, although the Insurer has for several years oolleoted premiums In excess of the maximum rates fixed by the oontract, and of those whloh he was legally obligated to^sy, and though he has protested against said esoessive rates, nevertheless it Is deo-ldod that suoh exoesslve premiums oannot be reoovered baok as they were voluntarily made under a olaim of right, the ground of the decision being that, in the absence of a statute, fraud, compulsion or duress, a person who with full knowledge of the facts voluntarily pays another money oannot thereafter reoover baok the same even though he protested at the time against his liability and declares that he makes the payment under ooerolon. A distinction was made between such a case and one of payment under a mistake of faots. So one voluntarily paying an Insurance premium with knowledge of the facts, oannot recover them on the theory that they were not in aooord with his oontraot. So where, under an employers liability polioy, and addition premium was paid after the expiration of the oontract, based upon wages of employees not in the olause included by the terms of the polioy, It was held, that suoh payment was voluntary one made under a mistake of law and not recoverable". In the case Tabot vs. New Bedford, 177 Mass. 197.; " Where plaintiff had paid a license conditioned as to believe he was permitted to oarry on his business, and the license was subsequently revoked the Court held:- " In an action for money had and received, when the plaint -iff made a voluntary payment free of any binding contract or condition: that there was no mistake of fact, and that the license was valid, at least while the board graating it remained in office."

In the 136 Mass. Rep. p. 485, Regan vs. Baldwin,;- " Where the le^sJÍ'íif a shopyprovided that the lessee^should pay a certain rent, except in case of fire, and shouldh keep the premises in repair, damage by fire excepted, so as to be rendered unfit for use, the renter a just proportionate thereof, according to the thing and extent of the injury sustained, should be abatted or suspended, until the premises should be put in proper condition for habitation of the lessor. During the term of the lease, the shop was injured by fire, so as to be unfit for use, the lessor did not repair for a certain time, refused to abate the rent, and demanded full rent of the lessee which he paid under protest. Held;- that the lessee had no cause of action against the lessor"

Walden vs. La. Insurance Co. 12 L. 134. " The insurer must be informed of every circumstance tending to create or increase the risk, and which if disolosed, might induce him to decline or even demand a higher premium."

In the 135 L. p/ 47, Mutual Life Insurance Co. vs. New. , quoting from the syllabus; " Where there is a clause in the policy of insurance provided that that if the age of the assured has been misstated that the benefit will be adjusted equitably upon ascertainment of that fact, and there is another olause providing that after two years the policy will be in-contestible, if the premiums have been paid, both clauses are general and one does not control the other".

In that case without quoting anything more than we have from the syllabus, the Court goes on to say: That where the assured has understated her age, and the company after death paid the policy, suit brought by the company subsequently to the party paying in errorj was denied the right of recovery/beoauee of the clauee in the policy of incontestibility after two years.

A careful examination of the case at bar satisfies us that plaintiff has accomplished the object stated in his petition and has received the benefits by misstating his age. The law is absolute, and in so far as the authorities go^all that we have been able to find are ananfanJi amraAsuii unanimous, in sustaining the rights of defendant in this case land in refus-voluntarily given by plaintiff to further his object.

For the reasons herein assigned, it is ordered, adjudged and deoreed, that the judgment of the lower Court, be, and is hereby affirmed with costs of both Courts.

-Judgment Affirmed-  