Am. Bankers' Ins. Co. v. Hopkins
| Decision Date | 24 December 1917 |
| Docket Number | Case Number: 7673 |
| Court | Oklahoma Supreme Court |
| Parties | AMERICAN BANKERS' INS. CO. v. HOPKINS. |
¶0 1. Insurance--False Statements by Insured--Burden of Proof--Question for Jury.
Where, in an action on a life insurance policy, which contains a provision that "All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties," the falsity of such statements is relied upon as a defense, the burden is upon the insurer to show that such statements were made willfully and with intent to deceive; and the materiality of such statements and the intent of the insured to deceive are questions for the jury.
2.Evidence -- Parol Evidence -- Insurance Policy.
Where a life insurance policy is contested on the ground of fraud, parol testimony tending to show the circumstances, statements, and representations which led up to and induced the making of the instrument is not inadmissible upon the ground that it tends to vary the terms of the written application for insurance and the written medical examination signed by the insured.
3. Same--Life Policy--Fraud.
Where an instrument is attacked for fraud, all the circumstances and transactions leading up to and surrounding the execution of the instrument, as well as the motives and intentions that prompted the makers to execute it, may be shown by parol.
4. Privileged Testimony--Statute.
By the express terms of the statute (section 5050, Rev. Laws 1910), physicians and surgeons are incompetent to testify without the consent of the patient with respect to two subjects: (a) Any communication made to him by his patient with reference to any physical or supposed physical disease; and (b) any knowledge obtained by a personal examination of any such patient. And this consent is given, according to the terms of the proviso to said section, only in the event the patient offers himself as a witness and voluntarily testifies on the same subject.
Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
Action by Marie Smith Hopkins against the American Bankers' Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Hainer, Burns & Toney, for plaintiff in error.
V. E. McInis, for defendant in error.
¶1 This was an action on two life insurance policies, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. For convenience, the parties will be designated "plaintiff" and "defendant," respectively, as they appeared in the trial court.
¶2 The petition, which was in the usual form, alleged the issuance of the policies to Ella D. Smith, the insured, that the plaintiff was the daughter of the insured and the beneficiary designated in said policies; that Ella D. Smith died on the 19th day of May, 1914, while said policies were in full force and effect; that demand has been made upon the defendant for the payment of same, which payment was refused. The answer of the defendant admitted the issuance and delivery of the policies to Ella D. Smith, her death, etc., and by way of defense alleged in substance: That said policies were issued and delivered to said Ella D. Smith in consideration of her having entered into an application in writing therefor, wherein she covenanted and agreed that said application together with the questions and answers therein contained as to her physical condition, together with all other statements contained in said application, should become a part of said insurance policy to be issued thereon, in the event her application was accented by the defendant. That sid application was accepted by the said company, believing that the answer made by said Ella D. Smith to the questions asked her were true, and said defendant in error relied upon said answers as being true, when in truth and in fact the said Ella D. Smith had procured the said insurance policies issued to her through fraud and misrepresentation, in this, to wit: That said Ella D. Smith concealed her true physical condition which was not apparent to the examiner, by giving false answer to certain questions contained in said application for insurance as follows:
¶3 That the answer to these questions were false and fraudulent, and were known by said insured to be false and fraudulent at the time said answers were made. That in truth and in fact said insured at the time she made said answers was suffering from internal and malignant cancer, and had been so advised by her physicians. That she had been confined in the Frisco Hospital in St. Louis, Mo., for treatment, and had been treated for said cancer a short time prior to the time of making said application for said policies of insurance, and was at the time of said application for said policies suffering from said cancer, and had been advised by her physicians that she could not live more than one year, and that all such facts were in possession of the insured, and were not disclosed by her to said defendant or any agent or medical examiner of said defendant company, but were willfully, fraudulent, and purposely withheld from said company, and from its said medical examiner, for the purpose and intention of obtaining said life insurance policies, and that by reason of the false and fraudulent statements, representations, and condition of the insured in procuring said policies of insurance, the same were void and of no force and effect. That the defendant did not learn of the false and fraudulent representations made by said insured in said applications for policies until after the death of said insured, and upon discovering the same, it tendered back to the plaintiff, and beneficiary named in said policies, the total amount of the premiums previously paid thereon.
¶4 The part of the reply necessary to notice consisted of specific denials of the allegations of fraud and misrepresentation, and of each and every allegation of new matter contained in the answers, and allegations to the effect that the insured, in fact, told the examining physician of the insurance company about her stay in the hospital in St. Louis, but that he advised her that that was immaterial, and himself put down the answer of the insured to the effect that the last time she consulted a physician was in February, 1913, on account of fracture of the arm. Upon the issues thus joined there was trial to a jury, which returned a verdict for the plaintiff upon which judgment was duly rendered, to reverse which this proceeding in error was commenced.
¶5 Counsel for plaintiff in error in their brief have summarized their assignments of error as follows: (1) The court erred in over ruling motion for new trial filed by the plaintiff in error, and in not rendering judgment for the plaintiff in error and against the defendant in error. (2) The court erred in admitting incompetent evidence, and in admitting statements and declarations of witnesses on behalf of the plaintiff tending to vary the written application for insurance and the medical examination signed by the insured. (3) The trial court erred in refusing to allow the defendant to submit to the jury in the trial court certain portions of the depositions of Drs. Cale and Woolsey and of the nurse who attended the insured in the hospital at St. Louis, and in refusing to permit the plaintiff in error to introduce the cross-examination of said witnesses.
¶6 In support of their first assignment of error counsel for the defendant contend that by the terms of their contract the parties stipulated that the answers and statements both in the applications and answers made to the medical examiner are true in all respects, and shall be deemed to be strict warranties, and therefore the question of their materiality does not enter into the case where the parties by their contract have made them material. In support of this proposition counsel cite section 3467, Rev. Laws 1910; National Council Knights and Ladies of Security v. Owen, 47 Okla. 464, 149 P. 231; Jeffries, Adm'r, v. Economical Mut. Life Ins. Co., 22 Wall. 47, 22 L. Ed. 833; Aetna Life Ins. Co. of Hartford v. France et al., etc., 91 U.S. 510, 23 L. Ed. 401.
¶7 The applications for insurance made by the insured contained the following clauses:
"I hereby declare that all the statements and answers to the above questions, together with this declaration, as well as the statements and answers made or to be made to the company's medical examiner in the examination which I hereby agree to take, shall constitute the application and become a part of the contract of insurance hereby applied for, and it is further agreed that the policy herein applied for shall be accepted subject to the privileges therein contained, and said privileges shall not take effect until the same shall be issued and delivered by the said company and the first premium paid thereon in full, while my health is in the same condition as described in this application." "I hereby declare that all the statements and answers to above questions are complete and true, and I agree that they shall form a part of the contract of insurance applied for."
¶8 Each of the policies contained the following provision:
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