Brown v. Continental Casualty Co.

• Decision Date: 01 March 1926
• Docket Number: 25880
• Citation: 108 So. 464,161 La. 229
• Court: Louisiana Supreme Court
• Parties: BROWN v. CONTINENTAL CASUALTY CO

108 So. 464

161 La. 229

BROWN v. CONTINENTAL CASUALTY CO

No. 25880

Supreme Court of Louisiana

March 1, 1926

Rehearing Denied May 3, 1926

Appeal from Eleventh Judicial District Court, Parish of Red River James W. Jones, Jr., Judge.

Action by Mrs. Susie Lee Brown against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals.

Judgment amended.

Wise Randolph, Rendall & Freyer, of Shreveport, for appellant.

Nettles & Bethard, of Coushatta, for appellee.

OPINION

O'NIELL, C. J.

This is a suit on an insurance policy providing for $ 1,000 indemnity for loss of life by accidental means. The policy was on the life of Dr. Andrew W. Brown, a physician of general practice, who died in consequence of inhaling too much chloroform, which he used to relieve headache and insomnia. The plaintiff in the suit is the widow, the beneficiary named in the policy. She sued for and was allowed double indemnity and $ 250 for her attorneys' fee, under sections 2 and 3 of the Act 310 of 1910, allowing such penalties for failure of the company to pay within 30 days after due notice and proof of death. The defendant has appealed from the judgment.

It is not contended that the insured committed suicide. He was accustomed to inhaling chloroform and taking chloral to relieve headache and insomnia, and was found dead in bed one morning, the evidence being that he had fallen asleep while inhaling the chloroform. It is possible, in fact not altogether improbable, that the death of the insured was the result of an overdose of chloral; but that is not contended for by either party to the suit; and it is virtually conceded that, if the insured did take an overdose of chloral, it was not done intentionally, the intention being to take the usual, harmless dose.

The headaches and insomnia which the insured suffered from were caused by a disturbance of the stomach, the ailment being in some measure chronic.

The suit is defended on four separate grounds. The first contention is that, in Dr. Brown's application for the insurance, he made a false statement with regard to a material fact when he said that he had not had and was not suffering from any chronic or periodic physical ailment or disease. The second contention is that, although the death of the insured was unexpected, unintentional and accidental, the means which caused the death was intentional and not accidental; the condition of the policy being not that the death itself should be accidental, but that it should be caused by accidental means, to make the company liable for the indemnity. The third contention is that chloroform is an intoxicant, and that the insured therefore died while under the influence of an intoxicant; whereas the policy, according to its terms, did not allow indemnity for death resulting while the insured was under the influence of any intoxicant. The fourth contention is that, by inhaling chloroform, the insured voluntarily exposed himself to unnecessary danger, in violation of an express condition of the policy.

Taking up appellant's first contention, we find it stipulated in the policy that it was issued in consideration of the statements made in the application therefor, and that a copy of the application was made a part of the contract. The application itself, which, as we understand, was made on a printed form prepared and furnished by the company was, as far as pertinent to this discussion, as follows:

"I hereby apply for insurance in the Continental Casualty Company (hereinafter called the company), based on the following statements: * * * Except as herein stated, I have not had nor am I now suffering from tuberculosis, paralysis, rheumatism, hernia, appendicitis, nor any chronic or periodic mental or physical ailment or disease, nor am I crippled or maimed, nor have I any defect in hearing, vision, mind or body. No exception. * * * I have made the foregoing statements as representations to induce the issuance of the policy for which I have made application, and to that end I agree that, if any one or more of them be false, all right to recover under said policy shall be forfeited to the company if such false statement was made with actual intent to deceive, or if it materially affects either the acceptance of risk or the hazard assumed by the company."

Appellant contends that the statement, in the application, that the applicant had not had and was not suffering from any chronic or periodic physical ailment or disease, was false, because he was suffering from the disturbance of the stomach and the consequent headaches and insomnia.

Act 52 of 1906 declares that every policy of insurance issued or delivered in this state by any life insurance corporation doing business in the state shall contain the entire contract between the parties; that nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application, or other writing, unless the same be indorsed upon or attached to the policy when issued; that all statements purporting to be made by the insured shall, in the absence of fraud, be deemed representations and not warranties; and that any waiver of the provisions of the statute shall be void. The statute refers, specifically, to life insurance corporations, and, in its title, to life insurance policies only. It is therefore doubtful whether the statute, except so far as it expresses the general policy of the law, is applicable to an indemnity policy, like this, covering loss of life by accidental means, but not from natural causes.

Act 97 of 1908, however, is applicable to health and accident policies, such as this, as well as to life insurance policies. The statute provides:

"That whenever life, health or accident insurance companies, which issue policies or contracts of insurance to the assured without a medical examination of the assured by a physician, it shall be presumed (whenever it appears that the agent of the company has had an opportunity to ascertain the true condition of the health, habits or occupation of the assured, and has certified to the company the desirability of the risk), that the knowledge acquired, or which might have been acquired with reasonable diligence by the agent of the company in securing the application, as to the health, habits or occupation of the assured, has been disclosed to his principal; and it shall also be presumed that the company has waived its rights to claim a forfeiture of the policy based on the ground that the assured did not make true and full answers in the application as to the health, habits or occupation whenever it shall appear that the agent of the company knew, or might have ascertained with reasonable diligence, the true condition of the applicant's health, or the real facts as to his habits or occupation, knowledge of the agent of the company in writing the application, or of the collector of the company in collecting the premiums from the assured, shall be imputed as notice to the company, as to the health, habits or occupation of the assured."

The policy sued on in this case was issued without a medical examination. No inquiry whatever was made by the company or its agent, as to whether the applicant had ever had stomach trouble, headache or insomnia, or with regard to his health or habits, in any respect. The only ailments inquired about specifically were the serious ailments specified in the application blank; i. e. tuberculosis, paralysis, rheumatism hernia, and appendicitis. If the ailments which the applicant in this instance had -- stomach trouble and consequent headaches and insomnia -- were not important enough for the company or its agent to inquire about, when the company and its agent had ample opportunity to inquire about them, then, by the terms of the act of 1908, and in the absence of any allegation of fraud, it must be presumed that the company waived its right to claim a...