Acacia Mut. Life Ins. Co. v. Weissman, 34282

• Decision Date: 20 July 1955
• Docket Number: No. 34282,34282
• Citation: 164 Ohio St. 82,128 N.E.2d 34
• Parties: , 57 O.O. 100 ACACIA MUTUAL LIFE INS. CO., Appellant, v. WEISSMAN, Appellee.
• Court: Ohio Supreme Court

Page 82

164 Ohio St. 82

128 N.E.2d 34, 57 O.O. 100

ACACIA MUTUAL LIFE INS. CO., Appellant, v. WEISSMAN, Appellee.

No. 34282.

Supreme Court of Ohio.

July 20, 1955.

Syllabus by the Court.

1. Under the provisions of Section of policy on ground that answers in application Code), every life insurance company doing business in this state shall return with, and as part of any policy issued by it, to any person taking such policy, a full and complete copy of each application or other document held by it which is intended in any manner to affect the force or validity of such policy.

2. A company which neglects so to do, so long as it is in default for such copy, shall be estopped from denying the truth of any such application or other document.

3. Such provisions are applicable to an application for reinstatement of the policy after default and lapse, as well as to an application for the original policy.

In the Court of Common Pleas the plaintiff insurance company instituted this action for the purpose of obtaining the cancellation of an insurance policy in the sum of $5,000 issued May 12, 1949, on the life of the defendant's husband, now deceased, which policy is now claimed to be null and void.

The following year the policy lapsed for nonpayment of the premium due on May 12.

Approximately three months later the insured filed an application for reinstatement of the policy, and on August 14 of that year the plaintiff company reinstated the policy. Subsequently all premiums were duly paid until the death of the insured on April 23, 1952.

The plaintiff company now seeks cancellation of the policy on the ground that the answers to certain questions in the application for reinstatement were fraudulently false, and that the policy would not have been reinstated if the company had known of the falsity of the answers which related to the health and medical treatment of the insured.

To the plaintiff insurance company's petition the defendant widow of the insured filed an amended answer and cross-petition in which she alleged two defenses and asked a judgment for the amount of the policy. The first defense is that the plaintiff company's action is barred by a provision in the policy to the effect that the policy shall be incontestable after two years from its date of issue except for nonpayment of a premium. The second defense is that the plaintiff company failed to furnish the insured, as a part of the policy, a copy of the application for reinstatement and that hence it is estopped to deny the truth of such application.

To the defendant's answer and cross-petition the plaintiff filed a reply.

On the issue of incontestability the trial court held in favor of the plaintiff. However, the issue of estoppel was determined in favor of the defendant widow, and a judgment was rendered in her favor for the full amount of the policy.

On an appeal to the Court of Appeals on questions of law, the judgment of the Court of Common Pleas was affirmed.

The cause is in this court for a review by reason of the allowance of the plaintiff company's motion to certify the record.

Marble & Vordenberg and Edward A. Burke, Cincinnati, for appellant.

Joseph A. Segal, Reuven J. Katz and Paxton & Seasongood, Cincinnati, for appellee.

WEYGANDT, Chief Justice.

This court is of the view that the lower courts were correct in holding that the failure of the plaintiff company to furnish the...