Broady v. Unity Industrial Life Ins. Co.

• Decision Date: 15 April 1935
• Docket Number: 15096
• Citation: 160 So. 653
• Court: Court of Appeal of Louisiana — District of US
• Parties: BROADY v. UNITY INDUSTRIAL LIFE INS. CO

160 So. 653

BROADY v. UNITY INDUSTRIAL LIFE INS. CO

No. 15096

Court of Appeal of Louisiana, Orleans.

April 15, 1935

Writ of error refused by Supreme Court May 27, 1935.

Henry J. Wymann, of New Orleans, for appellant.

Normann & McMahon and Harold M. Rouchell, all of New Orleans, for appellee.

OPINION

WESTERFIELD Judge.

This is a suit on a policy of industrial life insurance for the face value of the policy, $ 255, brought by the beneficiary named therein, Lizzie Broady. Defendant, in its answer admitted the existence of the policy, payment of the premiums, and the submission of proper proof of death. It denied liability upon the ground that the insured misstated his age at the time of the issuance of the policy as 49 years, whereas, as a matter of fact, he was more than fifty years of age and beyond the age limit acceptable to defendant, and that, therefore, under condition 10 of the policy, its liability is limited to the refund of the premiums paid or $ 23.75, which amount it deposited in the registry of the court.

There was judgment below dismissing plaintiff's suit, and she has appealed.

In the policy sued on, in a bracket under the printed caption "Age next birthday," appears the typewritten figures 49. Condition 10 of the policy reads as follows:

"If the age of the insured has been misstated, the amount payable under this Policy shall be such amount as the premium paid would have purchased at the correct age of the Insured and if the correct age exceeds the limit at which the company accepts members then the only liability of the company will be a refund of the premiums paid."

The defendant, through its assistant manager, and by the production of its rate book, proved that it did not write policies of the sort sued on here for persons more than fifty years of age. It then offered evidence tending to show that the insured in this case was of a greater age, when objection was made upon the ground that the statement of the assured's age was not indorsed on the policy and not contained in a written application attached to the policy, and that, therefore, under the provisions of Act No. 227 of 1916, proof of the alleged misstatement of age was inadmissible. The objection was overruled, the testimony administered and evidently found sufficient to establish defendant's contention, since the judgment of the court below was adverse to plaintiff.

Two questions are presented for our consideration by this appeal First, one of law concerning the admissibility of evidence of the age of the assured under the circumstances of this case; and, second, one of fact, Did assured misstate his age and was he beyond the insurability limit? The answer to the first question depends upon the construction of section 2 of Act No. 227 of 1916, which reads as follows: "Be it enacted, etc., That every policy of insurance issued or delivered within the State on or after the first day of January, nineteen hundred and seven, by any life insurance corporation doing business within the State shall contain the entire contract between the parties and nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application or other writings unless the same are endorsed upon or attached to the policy when issued; and all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties, and no statement or statements not endorsed upon...