Goodbar v. Western &. Southern Life Ins. Co

• Decision Date: 11 October 1921
• Docket Number: (No. 4227.)
• Citation: 108 S.E. 896
• Court: West Virginia Supreme Court
• Parties: GOODBAR. v. WESTERN &. SOUTHERN LIFE INS. CO.

108 S.E. 896

GOODBAR.

v.WESTERN &. SOUTHERN LIFE INS. CO.

(No. 4227.)

Supreme Court of Appeals of West Virginia.

Oct. 11, 1921.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error to Circuit Court, Cabell County.

Action by Zorada Goodbar against the Western & Southern Life Insurance Company. Judgment for plaintiff, and the defendant brings error. Judgment reversed, verdict set aside, and cause remanded for new trial.

Fitzpatrick, Campbell, Brown & Davis, of Huntington, for plaintiff in error.

J. H. Strickling and Jean F. Smith, both of Huntington, for defendant in error.

RITZ, P. The plaintiff brought this suit to recover the indemnity provided in a policy of insurance issued by the defendant upon the life of her husband, Harry Goodbar. To review a judgment in her favor for the amount of said indemnity this writ of error is prosecuted.

On the 1st day of December, 1913, according to the plaintiff's contention, and on the 1st day of January, 1914, according to the contention of the defendant, Harry Goodbar applied to an agent of the defendant for a policy of life insurance in the sum of $3,000. This application was in writing, and is introduced in evidence in this case. Upon this application the defendant issued the policy of insurance desired, and sent it to its agent at Huntington, who delivered it to the insured. At the time the application was taken Good-bar paid the sum of?5 as an advance on the premium charged, which was $58.80. At the time of the delivery of the policy on the 8th of January, 1914, Goodbar was not able to pay the balance of the premium, and the plaintiff states that the agent accepted another payment of $2. for which a receipt was given, and Goodbar's note or due bill for $51.S0, and delivered the policy unconditionally, while the agent swears that he delivered the policy to Goodbar accepting the $2 as a conditional payment, with the understanding that the policy was simply delivered for examination, and would be returned unless the full premium was paid within 30 days, and he says that he took a written statement from the insured showing this fact. This writing, however, is not produced, and the defendant shows that it is unable to locate the same if, indeed, it ever existed. On the 9th of January, 1914, Goodbar became very sick from bichloride of mercury poisoning, presumably taken with suicidal intent, and on the 15th of that month he died as a result thereof. At the time the application for insurance was made, and on the same day, Goodbar was taken before the company's local medical examiner, Dr. Shafer, who examined him and submitted his result of the examination to the company with the application for insurance. This same doctor was called to attend Goodbar in his last illness, and discovering while giving this attention that Goodbar only had one foot, and recalling that this did not appear from the medical examination which he submitted, he told Goodbar that he ought to return the policy of Insurance, and have the same corrected so as to show the fact in that respect. Prior to this, however, the agent of the company had come to Goodbar's house to secure the return of the policy. Mrs. Goodbar says that both of these parties represented that it would not affect the validity of the policy in the least, but that they simply wanted it for the purpose of making it speak the truth. The Goodbars refused to return it to the agent, but they did return it to the doctor, and he sent it to the company with the explanation that the insured had only one foot. It never was returned by the company, but a copy was furnished to the plaintiff, upon which this suit was brought.

The defendant interposed to the declaration four defenses. Tbe first asserted that the insured had committed suicide by taking bichloride of mercury within two years of the date of the issuance of the policy, and that because of a provision in the policy to the effect that in case of the suicide of the insured, while sane or insane, within two years from the date of the issuance of such policy, the limit of recovery would be the amount of the premiums paid, it was only liable for the sum of $7, the amount actually paid by Goodbar as premium. The second defense is that the insured, at the time he applied for said insurance, made an application and appended thereto, over his signature, a statement that the representations made therein were true, and were offered to the company as representations upon which they might rely in issuing the said policy; that among the questions asked him in said application was: "Have you ever had any illness, injury or disease other than stated by you above?" That he had not theretofore indicated that he had had any disease or injury, and that the answer to the question was, "No." That in fact and in truth the insured had prior to that time suffered an injury which resulted in the loss of one of his feet, which fact he concealed from the defendant. Third, that he also represented in said written application that he had never applied to a company or agent for insurance without receiving a policy in the exact amount and of the kind applied for, when in fact and in truth within less than one year prior to the issuance of this policy, and the making of this application, he had been rejected and refused insurance by two other companies. Fourth, that the policy provides that it shall continue in force only for the period actually paid for, and that no premium could be paid for a less period than three months, and that the policy was simply delivered to Goodbar for examination, and because of his failure to make the payment of the premium provided by the terms of the policy prior to his death his beneficiary was not entitled to recover thereon. The replication to these defenses denies that the insured committed suicide; asserts that while the premium had not been paid, this requirement had been waived by the company's agent by accepting the duebill or note from the insured for such premium, and unconditionally delivering the policy; and that the representations by the insured that he had received no injury prior to the application for insurance, and had never been refused insurance by any other company, were in effect waived by the defendant because it, through its agent, was fully advised of the facts in regard thereto.

As before indicated, the evidence upon the question of delivery of the policy and waiver of the payment of the premium is conflicting. The agent says that he delivered the policy for examination upon condition that it would be returned if the premium was not paid within thirty days, and that at the time he so delivered it Goodbar signed a writing showing this understanding. This writing, however, is not produced. This agent admits that Mrs. Goodbar was present at the time of delivery. She testifies that when the agent came to deliver the policy he was advised that they did not havethe money to pay the premium at that time; that he told them that he would deliver the policy and accept a note or duebill for the balance of the premium, and that this would put the policy in immediate effect; that he did deliver the same, and that he was paid $2 in money and given a note or duebill by the insured, which note or duebill was not paid prior to Goodbar's death. She says that the insurance company's agent also promised on that occasion to indorse a note for them for a larger amount than the balance of the premium, upon which they could secure the money and pay off this duebill, and that she went to his office a-day or two afterward to get him to indorse this note, but that he refused to do so. Upon this showing the jury, under the instructions of the court, found that the requirement as to the payment of the premium had been waived by the company. The defendant's counsel do not contend that such a requirement as this could not be waived. That such can be done seems to be well established. 14 R. C. L. title "Insurance, " § 362. Nor is it doubted that the testimony of Mrs. Goodbar would constitute a waiver, if true, it being purely a question whether she or the agent correctly reported the facts. The jury's finding is conclusive upon that question.

The next defense relied upon is that of suicide. One of the conditions of the policy is:

"In case of suicide, while sane or insane, within two years from the date on which this insurance begins, the limit of recovery shall be the amount of premiums paid thereon."

Goodbar died within a very few days after the issuance of the policy, and the...