ON MOTION FOR REHEARING. As a ground for rehearing plaintiffs say that they inadvertently overlooked citing Burgess v. Pan-American Ins. Co. (Mo. Div. I.), 230 S.W. 315, "which is controlling in this instant case." However, we did consider the Burgess case, because it was discussed in Langan v. United States Life Ins. Co. (Div. I), 344 Mo. 989, 130 S.W.2d 479, cited and quoted in our opinion. In the Langan case, we pointed out that the Burgess case reached the correct result because "the vital point related to the condition of the insured's health at the date the policy was delivered." As was also pointed out, there was a discussion of misrepresentation of age. We think the ruling on that point (in the Burgess case) was right because that opinion states (as to the defense that the company "had a rule by which it would not insure the life of anyone over the age of sixty years, and therefore the policy was void ab initio"): "One thing is certain, the rule was not a part of the contract. No such provision appears in the policy or application which together constitutes the contract." Of course no rule of the company (the Burgess contract "was an oldline life insurance policy"), which was not a part of the contract, could have any effect on the contract that actually was made. Therefore, what the Burgess opinion goes on and says, about the effect of the misrepresentation statute (sec. 5732) on an age limitation in a contract, is obiter, because it had no such contract provisions or policy before it. Furthermore, the authority for this obiter is Burns v. Metropolitan Life Ins. Co., 141 Mo. App. 212, 124 S.W. 539, and Metropolitan Life Ins. Co. v. Stiewing,173 Mo. App. 108, 155 S.W. 900, both of which held that an age adjustment provision was void under the misrepresentation statute (sec. 5732), and both of which were overruled by the Langan case which upheld the validity of such a provision.
What we hold in this case is this: In assessment insurance, where all persons insured must be members of the association, where all members regardless of age pay the same amounts for their insurance, where each policy is to some extent a contract with every other member, and where our statutes fix maximum age limitations beyond which insurance under this plan is prohibited, that an assessment company may by its contract fix age limitations within and less than the statutory maximum age limits; that such a contract does not insure persons over the age limit specified because it plainly says it does not; and that such persons, over the age which the contract agrees to insure, cannot use the misrepresentation statute to change such a contract so as to bind the company to do what the contract expressly provides it would not do. This must be true because age is a definite and certain matter, like an excepted risk or prohibited hazardous occupation. [See Wendorff v. Missouri State Life Ins. Co., *Page 826 318 Mo. 363, 1 S.W.2d 99; State ex rel. Mutual Ins. Co. v. Shain,344 Mo. 276, 126 S.W.2d 181.] Moreover, the assessment plan statutes (sec. 5751) recognizes that there must be age limits to this plan of insurance. How can a person's statement that he is within a certain age limit put him within it when he is not? Would his statement that he was not engaged in a prohibited occupation, when he was, make the misrepresentation statute applicable to give him insurance when his policy provided that it did not insure anyone in such an occupation? We can see no difference between an excluded age and any other definitely excepted risk or excluded occupation.
Unquestionably, as to a policy in which there was no contract about age limit, or as to persons within the limit where there was one, no misrepresentation as to age (as no misrepresentation about anything else that did not contribute to death) could be a ground for avoidance of the policy. But how can we say, when the contract is an agreement to insure only persons within a certain age limit, that nevertheless such contract can be held to insure a person over the age limit? To say that it does, is not merely to say that misrepresentation as to age prevents avoidance of the contract, but, instead, it is to say that the court will make and enforce a contract to insure a person as to whom there was none agreed upon by the parties. [See Carter v. Metropolitan Life Ins. Co., supra.] Moreover, not only was a contract; to insure only persons under fifty, the only one offered to or agreed upon with plaintiffs' insured, but, in such assessment insurance, defendant (by making this by-law a part of all its contracts) had contracted with every other member that it would not take members over fifty or require them to pay assessments to insure persons over such age. Defendant is not seeking to avoid the contract it offered to and agreed to make with plaintiffs' insured. It stands on the express terms of that contract. We hold that it had the right to make such limitations in its contract, and can be bound only by the contract it agreed to make. We cannot decree the reformation of it (for which no grounds of reformation are stated, such as mistake, etc.), which plaintiffs in effect seek, to hold that defendant was bound to do what its contract expressly provided it was not bound to do.
The motion for rehearing is overruled. Bradley and Dalton,CC., concur.