Bus. Men's Assur. Co. of Am. v. Marriner

• Decision Date: 04 June 1923
• Docket Number: No. 181.,181.
• Citation: 193 N.W. 907,223 Mich. 1
• Parties: BUSINESS MEN'S ASSUR. CO. OF AMERICA v. MARRINER.
• Court: Michigan Supreme Court

223 Mich. 1

193 N.W. 907

BUSINESS MEN'S ASSUR. CO. OF AMERICA

v.MARRINER.

No. 181.

Supreme Court of Michigan.

June 4, 1923.

Appeal from Circuit Court, Menominee County, in Chancery; Richard C. Flannigan, Judge.

Suit by the Business Men's Assurance Company of America against Minnie A. Marriner to restrain the prosecution of an action at law. Decree for defendant, and plaintiff appeals. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, and STEERE, JJ. Sawyer & Sawyer, of Menominee (Solon T. Gilmore, of Kansas City, Mo., of counsel), for appellant.

John J. O'Hara, of Menominee (Martineau & Martineau, of Marinette, of counsel), for appellee.

STEERE, J.

Plaintiff is an assessment accident insurance company incorporated under the laws of Missouri, and authorized to do business in this state.

On September 18, 1918, it issued to Robert G. Marriner of Menominee, Mich., one of its accident policies known as ‘Form C,’ providing indemnity of from $3,000 to $6,000 for death caused by accident and health indemnity from $6 to $15 per week. For this he made the required first payment of $8, including membership fee. On November 21, 1918, he came to his death from traumatic pneumonia shortly following a serious accident.

Defendant as beneficiary named in the policy made proof of loss and application for the indemnity provided in the policy, which plaintiff after investigation declined to pay on the ground that in his application for the policy her decedent falsely stated his age. She thereupon brought an action at law in the circuit court of Menominee county, to recover upon the policy the indemnity specified.

Plaintiff then filed this bill in chancery to restrain her action at law, alleging as grounds therefor that in his application for insurance deceased intentionally understated his age as 57 years, when he was in fact over 60, which exceeded the age limit for that form of policy, and thereby obtained a policy which plaintiff would not have issued if truthfully advised of his age, and could not have legally done so under both the bylaws of the company and the laws of Missouri which prohibit the issuance of such policies to persons past 60 years of age; that he so misrepresented his age with intent to and did deceive plaintiff in that particular, and the misrepresentation materially affected the extent of the risk and plaintiff's action in accepting it.

Defendant answered in denial and, claiming the benefit of a cross-bill, asked a decree in her favor for the amount of the policy.

On the hearing an advisory jury was called at defendant's request to pass upon the questions of fact involved. At conclusion of the testimony plaintiff's counsel moved for a directed verdict on the ground that the undisputed evidence showed the insured was more than 60 years of age when he made his application, and plaintiff relied upon such misrepresentation in issuing the policy.

This motion was denied, and the case submitted to the jury to answer four questions propounded to them by the court. In instructing the jury the court advised them that the proceeding was a chancery case in which their services were merely advisory, and they were not called upon to return a general verdict, but ‘to answer certain questions yes or no,’ explained to them the nature of the controversy, saying, ‘and so the issue now is made whether or not the doctor was over the age of 60 years when he wrote out and signed the application for insurance,’ and submitted to them the following questions:

(1) ‘At his birthday nearest to September 6, 1918, was Robert G. Marriner over 60 years old?’

(2) ‘Did he knowingly misrepresent his age, in the application for insurance?’

(3) ‘If he knowingly misrepresented his age, did he do so with intent to deceive the insurance company regarding his age?’

(4) ‘Did the misrepresentation of his age materially affect the acceptance of the risk by the insurance company?’

Of the first question the court said: ‘If you answer No. 1, ‘No,’ you need not answer either of the following questions.' The jury answered the first question, ‘No,’ and returned the others unanswered.

Having received the jury's advisory verdict, the court heard argument of counsel and took the case under advisement. Subsequently an opinion was rendered and decree entered dismissing plaintiff's bill and granting to defendant on her cross-bill a decretal judgment for the amount, with interest, of death loss provided for in the policy.

Deceased was a practicing physician located in Menominee, Mich. A patient of his who had sustained an injury was receiving benefits under a policy of plaintiff's, and had received a blank application with some papers sent him by plaintiff in that connection. Stating he had no insurance of that kind and thought he would make an application, deceased obtained the blank from his patient, sat down at his desk and filled it out, signed and mailed it to plaintiff's address at Kansas City, Mo., with a remittance of $8, being amount required to cover membership fee and first quarterly assessment under Form C of the company's policies, which, according to advertising matter with explanations printed on the back of the application, provided for at least $3,000 payment in case of accidental death and from $6 to $15 per week health indemnity, parenthetically giving ‘(Age limit 18 to 60 years).’ This printed matter on the back of the application told also of two other forms of policies with larger benefits and higher dues and age limit between 21 and 55 years. Amongst the 30 questions asked in the printed form were the applicant's age, weight, height and date of birth. Deceased gave his age as ‘57‘ and date of birth ‘Dec. 5, 1860.’

No witness was produced who knew Dr. Marriner in his childhood or had personal knowledge of his age. One witness knew him when he was married to his first wife, Ida I. Hubley, who came from Illinois, and was told of their marriage by deceased. A certified copy of a marriage license and certificate of marriage with other credentials filed with the clerk of Du Page county, Ill., showed that deceased, Robert G. Marriner, was licensed to marry and legally married to Ida I. Hubley at Naperville in that county on April 8, 1880; that he then gave his age at next birthday as 26 years, his occupation a physician, and birth place London, England. Defendant, who was his second wife, testified that neither she nor he knew his age; that he had no record or papers on the subject, and, as she learned from him, he grew up in this country as an orphan, having come to Chicago when a small boy with his parents, who died shortly after arriving there.

Plaintiff also produced in evidence three duly verified applications...