Bendford v. National Life & Acc. Ins. Co.
| Decision Date | 13 April 1959 |
| Docket Number | No. 27,27 |
| Citation | 356 Mich. 52,96 N.W.2d 113 |
| Parties | Mildred BENDFORD, Plaintiff and Appellee, v. NATIONAL LIFE & ACCIDENT INSURANCE COMPANY, a Tennessee corporation, Defendant and Appellant. |
| Court | Michigan Supreme Court |
Fischer, Sprague, Franklin & Ford, Detroit, Edward B. Harrison, Detroit, of counsel, for appellant National Life & Accident Ins. Co.
Sol J. Schwartz and Richard B. Kramer, Detroit, Sol J. Schwartz, Detroit, on the brief, for appellee.
Before and Entire Bench.
In June, 1953, plaintiff's decedent signed a written application to defendant insurance company for a policy of industrial life insurance. The policy was issued June 29, 1953, naming his wife, plaintiff, beneficiary. He died May 26, 1955. Defendant declined to make payment under the policy and tendered all premiums paid on it. Plaintiff refused the tender and brought this suit in the common pleas court for the City of Detroit to recover the $1,000 face amount of the policy, plus interest.
Defendant raised two major defenses: (1) the policy had been procured by fraud in that decedent had made false and fraudulent misrepresentations as to facts in his application for the policy, and (2) decedent was not in sound health on the date of issue of the policy, which was an express condition precedent to its taking effect.
The application contained the following questions and answers:
'9. Is the proposed insured in good health, to the best of your knowledge? Yes.
'12. Has proposed insured had any illness, injury or accident in past 5 years? No.
It is admitted that decedent signed the application but that the answers are the handwriting of defendant's agent. No copy was attached to the policy.
The proofs show that in 1949 decedent had been a patient in a hospital for 15 days and operated on for pleurisy. During the ensuing six years until his death the lung infection continued to drain intermittently through an opening in his chest. He had been hospitalized again for 31 days in 1951, also, according to indications in the record, because of the lung infection. The cause of his death, as disclosed by the death certificate, was septicemia due to chronic draining of the chest wall.
On trial defendant offered the application in evidence to show that the policy had been obtained by fraud. It was excluded on the ground that a copy had not been attached to the policy. Defendant also offered the testimony of a physician who had performed an autopsy on decedent's remains to show that decedent had not been in sound health when the policy was issued. This was excluded as privileged.
The jury returned a verdict for plaintiff. Defendant appealed to circuit court. That court upheld the trial court's above mentioned exclusions of defendant's proffered evidence. It reversed and remanded for new trial, however, on other grounds. Defendant, on leave granted, appeals here on the above evidence questions, urging that it is entitled to judgment as a matter of law but if this be denied and the order granting new trial be affirmed, then determination of those two questions should first be made here as a guide to the trial court. Plaintiff cross-appeals from the circuit court order for a new trial, challenging its findings of error in the trial and asking that the judgment of the trial court on the jury verdict be affirmed.
Was the application inadmissible because a copy was not attached to the policy? Plaintiff relies on New York Life Insurance Co. v. Hamburger, 174 Mich. 254, 140 N.W. 510, as holding so. Decision in that case was planted on P.A.1907, No. 187, § 1, subd. 4 (3 How.St.2d, § 8312), which read:
'No policy of life insurance shall be issued in this State, unless the same shall contain the following provisions: * * *
'Fourth, A provision that all statements made by the insured, shall, in the absence of fraud, be deemed representations and not warranties, and that no such statement shall avoid the policy unless it is contained in a written application and a copy of such application shall be endorsed upon or attached to the policy when issued; * * *'.
The policy involved in that case to which the Court applied that statutory provision was a general type of life insurance policy, not an industrial policy. The Court could not then have applied it to the latter because section 6 of that same act expressly provided:
'This act shall not apply to * * * industrial policies * * *.'
At that time there was no other statute applicable to industrial policies. A statute governing industrial policies came into being in Michigan for the first time in 1943 and continued in effect, unamended, during the entire period relevant to this case. P.A.1943, No. 81, pt. 3, ch. 2, §§ 4, 4a, 4b (C.L.1948, §§ 522.4, 522.4a, 522.4b [Stat.Ann.1943 Rev. §§ 24.264, 24.264(1), 24.264(2)]). The mentioned sections of said Act 81 are the only sections in the act referring to industrial insurance. They do require that industrial policies contain the following provision:
'Sec. 4a. * * * 'Third, A provision that the policy shall constitute the entire contract between the parties, or, if a copy of the application is endorsed upon and attached to the policy when issued, a provision that the policy and the application therefor shall constitute the entire contract between the parties, and in the latter case a provision that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties.'
This statutory language plainly leaves attachment of a copy of the application to the policy optional with the insurer. Neither this language nor any other in the mentioned sections governing industrial policies requires inclusion in them of a provision like that considered in the Hamburger case. Such provision is required under the fourth subdivision of section 3 of said Act 81, C.L.1948, § 522.3 () with respect to life insurance policies generally, but said section 3 states that its provisions and requirements apply to 'life insurance other than industrial life insurance', thus expressly exempting industrial policies from the requirement that the application must be attached to the policy in order to permit a false statement contained therein to avoid the policy.
We have noted that the statutory provision for attachment of a copy of the application to the policy, applicable to life insurance policies generally, was not extended by the legislature to industrial policies. It is to be noted, further, that this Court has declined to extend it by implication to other types of insurance than those specifically included by express statutory terms or to situations not included within the statutory language. See General American Life Insurance Co. v. Wojciechowski, 314 Mich. 275, 22 N.W.2d 371, and cases therein cited involving group insurance policies, and New York Life Insurance Co. v. Buchberg, 249 Mich. 317, 228 N.W. 770, 67 A.L.R. 1483, involving an application, not for issuance of a new insurance policy but for reinstatement of an old one.
In compliance with the third subdivision of section 4a of Act 81, the policy before us did provide that 'this policy constitutes the entire agreement between parties hereto'. This would preclude use of the application or information therein contained, while not attached to and made a part of the policy, for the purpose of varying the terms of the policy. It is no bar to its use for the purpose of showing fraud in the policy's procurement. This is so because its use for the latter purpose does not amount to making it part of the agreement nor to using it for the purpose of contradicting the terms of the agreement. One seeking to void an agreement for fraud is not limited, in proving such fraud, to the provisions of the agreement itself. In showing fraudulent misrepresentations not contained in the agreement procured thereby, one does not add to the agreement in violation of the statutory or policy provision that the policy constitutes the entire agreement. Plate v. Detroit Fidelity & Surety Co., 229 Mich. 482, 201 N.W. 457. The application should have been received into evidence as offered.
Holding as we do, for the above reasons, that the trial and circuit courts erred in ruling the application inadmissible, the next question arises as to the relief to which this entitles defendant....
To continue reading
Request your trial
-
Dampier v. Wayne County
...Mich. 129, 136, 545 N.W.2d 642 (1996). Plaintiffs further argue that the Michigan Supreme Court, in Bendford v. Nat'l Life & Accident Ins. Co., 356 Mich. 52, 60-62, 96 N.W.2d 113 (1959), determined that a deceased person undergoing an autopsy constitutes a patient of the medical examiner an......
-
Prudential Ins. Co. of America v. Cusick, 7
...2 cases are a bit different. Note, now, the reason for our refusal to apply the General American case to Bendford v. National Life & Acc. Ins. Co., 356 Mich. 52, 60, 96 N.W.2d 113, 117: 'Defendant then cites General American Life Insurance Co. v. Wojciechowsi, 314 Mich. 275, 22 N.W.2d 371, ......
-
Howard v. Golden State Mut. Life Ins. Co.
...which do not materially affect or weaken the insurer are not considered to affect the risk. See Bendford v. National Life & Accident Insurance Company, 356 Mich. 52, 96 N.W.2d 113 (1959). Accordingly, we find no error on the charge To the jury on the issue of misrepresentation.' (Emphasis G......
-
Certified Question, In re
...had induced the issuance of the policy. Id. 257, 287 N.W.2d 454. Ogrodnik was cited with approval in Bendford v. National Life & Accident Ins. Co., 356 Mich. 52, 63, 96 N.W.2d 113 (1959). Bendford also indicated that there is no requirement of a causal relation in Michigan law. See also Con......