NORTONI, J.
This is a suit on a policy of life insurance. Plaintiff recovered and defendant prosecutes the appeal.
[135]*135The policy is in the amount of $220. It appears that it was issued on April 11, 1910, on a written application executed by the insured a few days theretofore, to which was attached a detailed examination of the insured’s physical condition and concerning her health, by defendant’s physician. By its terms the policy is payable to plaintiff, husband of the insured, in event of the prior death of his wife, and it appears she died May 10, 1910.
The principal matter relied upon in defense is a condition contained in the policy to the effect that no obligation is assumed by the insurance company unless, on the date of the issue of the policy, the insured is in sound health. The policy contains such a provision and the evidence tends to prove that the insured was not in sound health at the time the policy was issued and delivered.
It is urged that the court should therefore have directed a verdict for defendant and thus declared the force of the condition in the policy above mentioned without submitting the matter'to the jury. It is said' that such conditions in the policy are universally sustained as proper and enforcible in law, and the case of Bell v. Missouri State Life Ins. Co., 166 Mo. App. 390, 149 S. W. 33, is relied upon as so declaring the rule.
The question involved here is to be determined by reference to our statute concerning life insurance, declaring that misrepresentations made in obtaining a policy of life insurance are to be deemed immaterial except in those cases where it shall appear the fact misrepresented actually contributed to the cause of death. It is true that we declared the rule with respect to a condition in the policy postponing the taking effect of the insurance contract in event the insured was not in good health at the time, as argued by defendant, in Bell v. Ins. Co., supra. But be that as it may, no such question as that presented here was made in that case. Indeed, there the contract under review [136]*136was not within onr statutes on the subject at all but, instead, the policy invoked was an Arizona contract. The insured applied for the policy in the State of Arizona. It was issued in Missouri but delivered to the insured in Arizona where the premiums were paid, and it became effective there as an insurance contract. For the facts, see Bell v. Ins. Co., above cited. Therefore, the policy in judgment in that case was not within the influence of our statutes for the very good reason that it was an Arizona contract. [See Cravens v. New York Life Ins. Co., 148 Mo. 583, 50 S. W. 519.] Here it appears the insured resided in St. Louis, where the insurance was negotiated, the premiums paid and the policy delivered. Such a contract is to be determined in accordance with our law on the subject.
By section 6937, R. S. 1909, it is providéd, in substance, that no representations made in connection with obtaining a life insurance policy shall be regarded as warranties. On the contrary all such representations are to be regarded and treated as immaterial, unless it shall appear that a misrepresentation was made with respect to a fact concerning the health of the insured, which condition of health so represented actually .contributed to the death of the insured. The statute further provides that the question as to whether it so contributed in every case is one for the jury. Under this statute, we have heretofore declared the rule is established that conditions in the policy such as that under review are to be considered and determined on the ba-. sis of representations. In other words such conditions are not available to defeat the insurance vouchsafed in the policy, unless it appears the condition of health of the insured was such that it contributed to the death, and the question of fact concerning this matter is one for the jury. [See Lynch v. Prudential Ins. Co. of America, 150 Mo. App. 461, 131 S. W. 145 ; Salts v. Prudential Ins. Co., 140 Mo. App. 142, 120 S. W. 714 ; [137]*137see, also, Burns v. Metropolitan Life Ins. Co., 141 Mo. App. 212, 124 S. W. 539.]
Here the question was submitted to the jury and the finding concerning it was for plaintiff, but it is said there is no evidence to support the verdict. The only evidence introduced by defendant concerning the condition of the health of the insured at the time the policy was issued is a recital in the physician’s certificate accompanying the proof of death furnished by plaintiff to defendant. As before said, the policy was issued and delivered on April 11th and the insured died on May 10th. Afterwards, within due time, a proof of death was furnished, in accordance with the provisions of the policy, and in connection with this the attending physician stated the cause of the insured’s death to be phthisis pulmonalis. A further statement by the attending physician in the same certificate reveals that the insured had been ill two months. It is insisted that these statements revealed beyond question that plaintiff’s wife was not in good health within the terms of the condition of the policy above referred to, even when considered under our statute. Therefore, it is said the question is concluded by the recitals contained in the proof of death and accompanying physician’s certificate, which the policy required to be furnished as a prerequisite to the payment.
There can be no doubt of the general rule that proofs of death furnished by a beneficiary to the insurer, in accordance with the requirements of the policy, are admissible in evidence against such beneficiary as admissions by him of the truth of the statements therein contained. 'There is strong reason for the rule where the statement invoked is made directly by the beneficiary, but it is qualified even then so that such statements will not operate an estoppel if they appear to have been erroneously made. When made by the beneficiary, the statements are prima facie evidence [138]*138only, and may be explained or overthrown in proper cases. This being true, it is certain they may be explained away or overthrown, though appearing in the proof of death, when made by another than the beneficiary, as here. [See Queatham v. Modern Woodman of America, 148 Mo. App. 33, 127 S. W. 651 ; Almond v. Modern Woodman of America, 133 Mo. App. 382, 113 S. W. 695.]
To the end of explaining and repelling the force of the statements so made in the proof of death by the attending physician, plaintiff introduced the original application executed by the insured, and utilized that portion of it revealing a medical examination made of the insured by the defendant’s examining physician shortly before the policy was issued. From this examination and report so made by defendant’s examining physician, it appeared the insured .was in good health at the time and was not afflicted with any kind of pulmonary trouble. But it is.argued this evidence was incompetent, for the policy provides on its face that it constituted the entire contract between the parties. Obviously such a provision in the policy will not suffice to render the application on which it was issued as incompetent evidence in the case, when considered under our statute. It is true, as asserted by defendant, that the application is only a proposition for insurance which carries with it a statement made by the medical examiner of the company, but when the application is accepted and acted upon and the policy issued thereon, no one can doubt that such a proposition becomes a part of the contract between the parties. Moreover our statute (Sec.
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NORTONI, J.
This is a suit on a policy of life insurance. Plaintiff recovered and defendant prosecutes the appeal.
[135]*135The policy is in the amount of $220. It appears that it was issued on April 11, 1910, on a written application executed by the insured a few days theretofore, to which was attached a detailed examination of the insured’s physical condition and concerning her health, by defendant’s physician. By its terms the policy is payable to plaintiff, husband of the insured, in event of the prior death of his wife, and it appears she died May 10, 1910.
The principal matter relied upon in defense is a condition contained in the policy to the effect that no obligation is assumed by the insurance company unless, on the date of the issue of the policy, the insured is in sound health. The policy contains such a provision and the evidence tends to prove that the insured was not in sound health at the time the policy was issued and delivered.
It is urged that the court should therefore have directed a verdict for defendant and thus declared the force of the condition in the policy above mentioned without submitting the matter'to the jury. It is said' that such conditions in the policy are universally sustained as proper and enforcible in law, and the case of Bell v. Missouri State Life Ins. Co., 166 Mo. App. 390, 149 S. W. 33, is relied upon as so declaring the rule.
The question involved here is to be determined by reference to our statute concerning life insurance, declaring that misrepresentations made in obtaining a policy of life insurance are to be deemed immaterial except in those cases where it shall appear the fact misrepresented actually contributed to the cause of death. It is true that we declared the rule with respect to a condition in the policy postponing the taking effect of the insurance contract in event the insured was not in good health at the time, as argued by defendant, in Bell v. Ins. Co., supra. But be that as it may, no such question as that presented here was made in that case. Indeed, there the contract under review [136]*136was not within onr statutes on the subject at all but, instead, the policy invoked was an Arizona contract. The insured applied for the policy in the State of Arizona. It was issued in Missouri but delivered to the insured in Arizona where the premiums were paid, and it became effective there as an insurance contract. For the facts, see Bell v. Ins. Co., above cited. Therefore, the policy in judgment in that case was not within the influence of our statutes for the very good reason that it was an Arizona contract. [See Cravens v. New York Life Ins. Co., 148 Mo. 583, 50 S. W. 519.] Here it appears the insured resided in St. Louis, where the insurance was negotiated, the premiums paid and the policy delivered. Such a contract is to be determined in accordance with our law on the subject.
By section 6937, R. S. 1909, it is providéd, in substance, that no representations made in connection with obtaining a life insurance policy shall be regarded as warranties. On the contrary all such representations are to be regarded and treated as immaterial, unless it shall appear that a misrepresentation was made with respect to a fact concerning the health of the insured, which condition of health so represented actually .contributed to the death of the insured. The statute further provides that the question as to whether it so contributed in every case is one for the jury. Under this statute, we have heretofore declared the rule is established that conditions in the policy such as that under review are to be considered and determined on the ba-. sis of representations. In other words such conditions are not available to defeat the insurance vouchsafed in the policy, unless it appears the condition of health of the insured was such that it contributed to the death, and the question of fact concerning this matter is one for the jury. [See Lynch v. Prudential Ins. Co. of America, 150 Mo. App. 461, 131 S. W. 145 ; Salts v. Prudential Ins. Co., 140 Mo. App. 142, 120 S. W. 714 ; [137]*137see, also, Burns v. Metropolitan Life Ins. Co., 141 Mo. App. 212, 124 S. W. 539.]
Here the question was submitted to the jury and the finding concerning it was for plaintiff, but it is said there is no evidence to support the verdict. The only evidence introduced by defendant concerning the condition of the health of the insured at the time the policy was issued is a recital in the physician’s certificate accompanying the proof of death furnished by plaintiff to defendant. As before said, the policy was issued and delivered on April 11th and the insured died on May 10th. Afterwards, within due time, a proof of death was furnished, in accordance with the provisions of the policy, and in connection with this the attending physician stated the cause of the insured’s death to be phthisis pulmonalis. A further statement by the attending physician in the same certificate reveals that the insured had been ill two months. It is insisted that these statements revealed beyond question that plaintiff’s wife was not in good health within the terms of the condition of the policy above referred to, even when considered under our statute. Therefore, it is said the question is concluded by the recitals contained in the proof of death and accompanying physician’s certificate, which the policy required to be furnished as a prerequisite to the payment.
There can be no doubt of the general rule that proofs of death furnished by a beneficiary to the insurer, in accordance with the requirements of the policy, are admissible in evidence against such beneficiary as admissions by him of the truth of the statements therein contained. 'There is strong reason for the rule where the statement invoked is made directly by the beneficiary, but it is qualified even then so that such statements will not operate an estoppel if they appear to have been erroneously made. When made by the beneficiary, the statements are prima facie evidence [138]*138only, and may be explained or overthrown in proper cases. This being true, it is certain they may be explained away or overthrown, though appearing in the proof of death, when made by another than the beneficiary, as here. [See Queatham v. Modern Woodman of America, 148 Mo. App. 33, 127 S. W. 651 ; Almond v. Modern Woodman of America, 133 Mo. App. 382, 113 S. W. 695.]
To the end of explaining and repelling the force of the statements so made in the proof of death by the attending physician, plaintiff introduced the original application executed by the insured, and utilized that portion of it revealing a medical examination made of the insured by the defendant’s examining physician shortly before the policy was issued. From this examination and report so made by defendant’s examining physician, it appeared the insured .was in good health at the time and was not afflicted with any kind of pulmonary trouble. But it is.argued this evidence was incompetent, for the policy provides on its face that it constituted the entire contract between the parties. Obviously such a provision in the policy will not suffice to render the application on which it was issued as incompetent evidence in the case, when considered under our statute. It is true, as asserted by defendant, that the application is only a proposition for insurance which carries with it a statement made by the medical examiner of the company, but when the application is accepted and acted upon and the policy issued thereon, no one can doubt that such a proposition becomes a part of the contract between the parties. Moreover our statute (Sec. 6978, R. S. 1909) proceeds on the theory that the application for the policy becomes a part of the contract when accepted and acted upon by the company. This statute requires the application upon which the policy is issued or its substance to be attached to or indorsed on the policy. While the company may not avail itself of its own [139]*139wrong in failing to observe this statutory injunction, no one can doubt that even in cases where it has omitted to do so, the beneficiary may utilize that portion of the application made by the insured’s medical examiner as evidence in the cause. If the application were attached to the policy as the statute requires, it would, of course, go in evidence along with the policy. The mere fact that defendant failed to keep this obligation and inserted a clause in the policy to the effect the policy itself should be looked to avails naught in its favor by way of excluding relevant portions of the application from evidence in the case. [See Norristown Title Co. v. Hancock Ins. Co., 132 Pa. St. 385 ; see, also, Moore v. Union Fraternal, etc., Assn., 103 Ia. 424.] The evidence was competent for the jury to consider, and its finding thereon concludes the question here.
Besides giving plaintiff a verdict for $220, the amount of the policy, the jury awarded him ten per cent thereon for a vexatious refusal to pay and fifty dollars for attorney’s fees, as provided by the statute (Sec. 7068, R. S. 1909). It is urged that there was no evidence whatever tending to show the delay waa vexatious or that plaintiff ever made demand on defendant for the payment of the policy; but, upon reading the record, the evidence is clear that an undertaker representing plaintiff presented the policy to defendant’s superintendent and requested payment. The superintendent retained both the policy and the book showing premium payments for a time and returned them denying any liability thereunder. It. is obvious that this is sufficient on the question of demand. Indeed, it would seem the denial of liability alone would suffice, for the law never requires the doing of a useless act. A practicing attorney testified that the services of an attorney in the justice of the peace court and the circuit court were of the reasonable value of fifty dollars. So it appears there is ample evidence [140]*140to support the finding touching these matters. It is true there is no direct and positive evidence to the effect that the delay in payment was vexations, but such evidence — that is, positive and direct evidence— is not required. The jury are authorized, in cases of this character, to infer and conclude that the delay was vexatious from a survey of all of the facts and circumstances in the case tending to reveal the conduct of the insurance company with respect to the matter. In this connection they may take into consideration the validity of plaintiff’s claim and the fact it became necessary to institute a suit to collect it.' Indeed, the fact that defendant declined to pay without litigation is of itself evidence tending to prove the delay thereabout to be vexatious. Such is the established .rule of decision. [See Keller v. Home Life Ins. Co., 198 Mo. 440, 95 S. W. 903 ; Cox v. Kansas City Life Ins. Co., 154 Mo. App. 464, 135 S. W. 1013 ; Williams v. St. Louis Life Ins. Co., 189 Mo. 70, 87 S W. 499 ; Stix v. Travelers’ Indemnity Co., 175 Mo. App. 171, 157 S. W. 870.]
.The jury awarded plaintiff interest at six per cent on the amount of the policy, and it is urged that this was error for the reason plaintiff did not demand interest in his petition. There are numerous decisions to the effect that interest may not be allowed unless prayed for in the petition, but the instant case originated before a justice of the peace where no formal pleadings are required. The statutes (Sec. 7412, 7413, R. S. 1909) when read together require that, when the suit is founded upon an instrument of writing executed by the defendant and the debt or damages may be ascertained from such instrument, it shall be filed with the justice as the foundation of the action. It has been heretofore determined that where the suit is on a written instrument, as here, and a statement of facts is also filed, such written instrument, and not the statement filed therewith, is the foundation of the suit. [Rhea [141]*141v. Buckley, etc., Mfg. Co., 81 Mo. App. 400.] Perforce of the statute (Sec. 7179, R.S. 1909), interest at six per cent per annum is allowed after demand on all written contracts when no- other rate is agreed- opon. It would he an extreme rule, in view of these statutes, to require a specific prayer for interest in a cause originating before the justice, when, indeed, no other statement of the cause of action is required than filing the instrument itself, on which interest accrues after demand, as above stated. Ordinarily special damages are not recoverable except they are prayed for in the petition, but this rule, it is said, does not obtain before the justice for the very sufficient reason that no formal pleadings are required. [See Lee v. Western Union Tel. Co., 51 Mo. App. 375.] A statement before a justice is always regarded sufficient if it informs the defendant with reasonable certainty of the nature of the cause of action he is called upon to meet and will afford a bar against another action thereafter on account of the same subject-matter. In this view, it has, moreover, been determined, too, that, as by express provision of the statute no formal pleadings are required before the justice, a complaint in a .cause originating in that tribunal is valid and sufficient though no prayer for judgment whatever is contained therein. [Lakey v. Hoops, 80 Mo. App. 508, 509, 510.] If such be true, and it is, it is clear that interest may be allowed at six per cent after demand on a contract executed by defendant for the payment of money without a formal prayer therefor, in cases originating before the justice.
The judgment should be affirmed. It is so ordered.
Reynolds, P. J., and Allen, J., concur.