Am. Nat. Ins. Co. v. Branch

• Decision Date: 10 June 1937
• Citation: 168 Va. 478
• Court: Virginia Supreme Court
• Parties: AMERICAN NATIONAL INSURANCE COMPANY v. MARMADUKE W. BRANCH.

Page 478

168 Va. 478

AMERICAN NATIONAL INSURANCE COMPANY v. MARMADUKE W. BRANCH.

Supreme Court of Virginia, Wythebille.

June 10, 1937.

Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. LIFE INSURANCE — Group Insurance — Court Must Look to Group Policy in Interpreting Contract. — A certificate that one is insured under the terms of a group policy of insurance does not constitute the entire contract between the insurance company and the assured, and consequently when the interpretation of the contract itself is involved, in order to ascertain the rights of the parties the court must look to the group policy and not merely to the certificate held by the assured.

2. LIFE INSURANCE — Group Insurance — Individual Certificate Evidence of Existence of Group Policy — Case at Bar. — In the instant case, an action to recover death benefits, the right to which was evidenced by a certificate reciting that such benefits were payable in conformity with a group policy held by the International Brotherhood of Boilermakers, etc., defendant contended that the certificate, which was offered in evidence, was not a complete insurance contract; that the basis of liability was the group policy, and that plaintiff had failed to show the existence of any group policy, or that if such policy existed, had failed to prove it was still in force or that any premiums had been paid thereon.

Held: That while the individual certificate was not a complete contract of insurance in itself, it was evidence of the fact that the group policy was in full force and effect, that it was in the possession of the International Brotherhood, and that assured was protected thereby.

3. LIFE INSURANCE — Group Insurance — Sufficiency of Evidence to Make out Prima Facie Case — Burden of Proof of Forfeiture or Cancellation of Group Policy — Case at Bar. — In the instant case, an action to recover death benefits, the right to which was evidenced by a certificate reciting that such benefits were payable in conformity with a group policy held by the International Brotherhood of Boilermakers, etc., plaintiff, husband of the assured, introduced in evidence the application for insurance and the certificate, and proved that he was a member in good standing of the International Brotherhood, that his wife was entitled to the insurance under the constitution and by-laws of the association, that all premiums required of assured had been promptly paid, that proof of loss had been filed with the insurance company, and that payment of the claim had been demanded and refused. Defendant contended that in the absence of affirmative proof that the group policy was in existence, or that it had not been canceled or forfeited, there could be no recovery.

Held: That plaintiff's evidence made out a prima facie case of the existence of the group policy and his right to recover thereunder, and the burden was then on defendant to produce evidence in force and effect, and that by reason of the fact, if it were it had been canceled or forfeited by reason of the fact, if it were true, that the International Brotherhood had failed to pay its share of the premium thereon.

4. LIFE INSURANCE — Group Insurance — Failure of Insurer to Produce Evidence of Non-Existence or Cancellation of Group Policy — Case at Bar. — In the instant case, an action to recover death benefits, the right to which was evidenced by a certificate reciting that such benefits were payable in conformity with a group policy held by the International Brotherhood of Boilermakers, etc., defendant contended that in the absence of affirmative proof that the group policy was in existence, or that it had not been canceled or forfeited, there could be no recovery.

Held: That defendant's failure to disclose such information on the subject of the non-existence, or forfeiture or cancellation, of the group policy as was exclusively in its possession, raised a strong presumption that such evidence would have operated to its prejudice.

5. STARE DECISIS — Obiter Dictum — Approval of Instruction Not Assigned as Error — Case at Bar. — In the instant case, an action to recover death benefits, the right to which was evidenced by a certificate reciting that such benefits were payable in conformity with a group policy held by the International Brotherhood of Boilermakers, etc., defendant relied upon a case in which the Supreme Court of Appeals dealt with a group policy issued by defendant to the International Brotherhood, and in which the trial court had instructed the jury that there was no liability on the insurance company, to which instruction there was no assignment of error or cross-error. In that case the Supreme Court of Appeals said that the jury was correctly instructed that there could be no recovery against the insurance company, but since the liability of the company was in no way involved in that appeal the expression of approval of this instruction was obiter dictum.

6. LIFE INSURANCE — Witnesses — Witness Who Contradicted Himself — Credibility and Weight of Testimony for Jury — Case at Bar. — In the instant case, an action on a group policy of insurance, defendant contended that the verdict should be set aside because assured stated in the application that she was born in 1875, whereas, in fact, she was born in 1870. If assured was born in 1870 she was over sixty years of age and not insurable. Defendant proved that in two other applications for insurance assured gave the date of her birth as 1870. Plaintiff, husband of assured, testified that she was born in 1875, although on cross-examination he answered, in a rather exasperated manner, that he did not know how old she was.

Held: That the fact that plaintiff thus contradicted himself did not disqualify him as a witness, and the jury was the judge of his credibility and the weight to be given to his testimony.

7. LIFE INSURANCE — Questions of Law and Fact — Correct Age of Assured — Case at Bar. — In the instant case, an action on a group policy of insurance, defendant contended that the verdict should be set aside because assured stated in the application that she was born in 1875, whereas, in fact, she was born in 1870. If assured was born in 1870 she was over sixty years of age and not insurable. Defendant proved that in two other applications for insurance assured gave the date of her birth as 1870. Plaintiff, husband of assured, testified that she was born in 1875, although on cross-examination he answered, in a rather exasperated manner, that he did not know how old she was.

Held: That the correct date of the birth of assured was a question for the jury.

8. LIFE INSURANCE — Presumptions and Burden of proof — Correctness of Statement in Application as to Age. — The statement of the assured as to his age, in the application for an insurance policy, is presumed to be correct, and the burden of overcoming this presumption is on the insurer.

9. LIFE INSURANCE — Questions of Law and Fact — Sufficiency of Evidence to Overcome Presumption of Correctness of Statement in Application as to Age — Case at Bar. — In the instant case, an action on a group policy of insurance, defendant contended that the verdict should be set aside because assured stated in the application that she was born in 1875, whereas, in fact, she was born in 1870. If assured was born in 1870 she was over sixty years of age and not insurable. Defendant proved that in two other applications for insurance assured gave the date of her birth as 1870. Plaintiff, husband of assured, testified that she was born in 1875, although on cross-examination he answered, in a rather exasperated manner, that he did not know how old she was.

Held: That whether defendant had carried the necessary burden of overcoming the presumption of the correctness of assured's statement in the application was a question for the jury.

Error to a judgment of the Circuit Court of the city of Portsmouth. Hon. B. D. White, judge presiding. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Robert F. McMurran, for the plaintiff in error.

A. A. Bangel, for the defendant in error.

EGGLESTON, J., delivered the opinion of the court.

On July 24, 1930, Marmaduke W. Branch was a member in good standing of Local Union No. 178, at Portsmouth, Virginia, of the International Brotherhood of Boiler Makers, Iron Ship Builders and Helpers of America, an unincorporated association hereinafter called the International Brotherhood, with headquarters at Kansas City, Kansas.

On that date his wife, Alma Hortense Branch, filed a written application with the Portsmouth lodge for death benefit insurance in the sum of $1,000, to which she was entitled under the constitution and by-laws of the International Brotherhood. The application stated that the said insurance was "to become an obligation of the American National Insurance Company in accordance with the terms, provisions and conditions of the existing policy contract with the International Brotherhood of Boiler Makers, Iron Ship Builders and Helpers of America, after this application has been approved by the Secretary-Treasurer of the International Brotherhood of Boiler Makers, Iron Ship Builders and Helpers of America and accepted by the Home Office of the American National Insurance Company," and was to be payable to Marmaduke W. Branch.

The application was duly approved by the said secretary-treasurer of the International Brotherhood, and accepted by the home office of the American National Insurance Company, which, on September 1, 1930, issued and delivered to the insured a certificate in the following words and figures, to-wit:

"AMERICAN NATIONAL INSURANCE CO. of Galveston, Texas "Certificate No. V-1957

Age — 55 —

"THIS IS TO CERTIFY THAT

INTERNATIONAL BROTHERHOOD OF BOILER MAKERS, IRON SHIP BUILDERS AND HELPERS OF AMERICA of Kansas City, Kansas, has contracted to insure The life of ALMA HORTENSE BRANCH , WIFE of Member MARMADUKE W....