Business Men's Assur. Co. v. Campbell

• Decision Date: 11 May 1929
• Docket Number: No. 8338.,8338.
• Citation: 32 F.2d 995
• Parties: BUSINESS MEN'S ASSUR. CO. OF AMERICA v. CAMPBELL.
• Court: U.S. Court of Appeals — Eighth Circuit

32 F.2d 995 (1929)

BUSINESS MEN'S ASSUR. CO. OF AMERICA v. CAMPBELL.^*

No. 8338.

Circuit Court of Appeals, Eighth Circuit.

May 11, 1929.

Solon T. Gilmore, of Kansas City, Mo. (John Gilmore, of Kansas City, Mo., on the brief), for appellant.

Charles E. Feirich, of Carbondale, Ill. (Walter R. Mayne, of St. Louis, Mo., Ludwick Graves, of Kansas City, Mo., and Fordyce, Holliday & White, of St. Louis, Mo., on the brief), for appellee.

Before LEWIS, Circuit Judge, and WOODROUGH and McDERMOTT, District Judges.

LEWIS, Circuit Judge.

Appellee, plaintiff below, was beneficiary in an accident and health policy issued by defendant on June 8, 1920, to her husband, and she recovered the amount of indemnity therein named on account of his death by accident. The proof establishes beyond question that the accidental injuries received by the insured on October 4, 1925, resulted in his death on December 13, 1925; and plaintiff's case was brought within the risk assumed by the insurer.

But the answer pleaded that the policy was at all times null and void because of a false statement made by insured in his application for the policy. The application contained twenty-eight printed questions, and above them the printed statement: "I hereby apply for insurance in the Business Men's Assurance Company of America, to be based upon the following statement of facts. The policy issued on this application is to take effect when received by me." Following each question there was a blank space in which to write the applicant's answer. Questions 23 and 28 and the answers thereto that were written in are as follows:

"23. Has any life, health or accident company ever cancelled your insurance, rejected your application or refused to renew or reinstate you? No.

"28. Have you read the foregoing answers and are they true and complete? Yes."

The applicant signed his name below the questions and answers. Defendant's agent solicited the application, and when it was fully made up sent it to defendant. The policy was then issued and it contains a clause which recites: "This insurance is granted in consideration of the application therefor, a copy of which is attached hereto and made a part hereof."

Defendant's answer to the complaint set out questions 23 and 28 and the answers thereto, and alleged that in issuing the policy it relied upon the facts stated in the application and believed them to be true, but that in truth and in fact the answer to question 23 was untrue, that in the year 1919 and prior to the time when insured made application for the policy sued on, he applied to the Metropolitan Life Insurance Company of New York City for a policy of life insurance and his application was in that year declined, said Metropolitan Company refusing to issue to insured its policy of life insurance, that had insurer known at the time it issued its policy herein sued on that the answer to said question 23 was false and untrue it would not have issued its policy; and that it did not know the facts in that respect until after the death of insured. The proof shows that the Metropolitan company did refuse to issue to insured a policy of life insurance in the year 1919 on the ground that its medical examination of insured disclosed he had high blood pressure. Appellee insists rejection by the Metropolitan company was not shown, but we think it clear the proof, oral and documentary, coupled with section 638, tit. 28, U. S. Code (28 USCA § 638), established the fact. A reply to defendant's answer set up estoppel, in that, defendant's agent requested insured to sign a blank application for the policy sued on, the agent saying he would fill in the answers from a prior application made by insured on which defendant had issued its policy to insured in 1918, that relying thereon insured did sign the application in blank, that the agent then filled in the answers as he found them in the prior application; and this estopped defendant to dispute their verity.

Defendant did issue a policy to insured in 1918, in the same terms as the one sued on. He wrote in the answers to the thirty questions in the application for that policy with his own hand. He permitted that policy to lapse. Defendant's agent went to insured's store on June 1, 1920, and told insured he had come there to ask him to reinstate the lapsed policy. Insured consented to do so. There is conflict between the agent and the beneficiary in their testimony as to how the application for the policy sued on was made out. Mrs. Campbell, the beneficiary, testified her husband told the agent he was too busy at that time to attend to the matter, and the agent said if Mr. Campbell would give him the old policy, which contained the application for it, he would make out a new application, that her husband went to the safe, got the old policy with the attached papers and handed them to the agent, that at the request of the agent Mr. Campbell signed a new application, that the agent then sat down alone at a desk and filled up the new application, inserting therein the answers that had been made in the application for the prior policy. The same questions and answers are found in substance in both applications. The agent testified that he did write in all answers in the new application, but that he did so after reading each question to Mr. Campbell and that he then wrote down each answer, according to Mr. Campbell's response.

Appellant insists question 23 was a material inquiry to its determination whether it would assume the risk, and the answer thereto being in part false the policy was void. The question is manifold, and it is not denied that the answer was true in all respects but one. It is claimed that the applicant in his answer to that question should have disclosed that the Metropolitan company had rejected his application for a life policy. But that inquiry was not embodied in the question. The claim is in reality one of concealment, rather than falsification. Culling from the whole question that part of it to which appellant says an affirmative answer should have been given we have this: "Has any life company ever rejected your application?" Application for what? For a policy? Yes, impliedly. But what kind? The subject matter under consideration in the minds of both applicant and agent was an accident and health policy. The terms of the question tended to impress that thought; and several questions preceding related only to accident and health policies. We think we may assume, — at least it was not unreasonable for applicant to do so, — that some companies that issue life policies also issue accident and health policies. Nor were many other kinds of policies excluded, — fire, burglary, etc. Was the applicant bound to answer as to all of these? The question did not direct the applicant's attention to his request, if any, for insurance on his life, except as that might be included in an accident policy, as was done in Ætna Life Ins. Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356, and Prudential Ins. Co. v. Moore, 231 U. S. 560, 34 S. Ct. 191, 58 L. Ed. 367. On the whole facts of the case it cannot be maintained that any one, in making up the application, was guilty of trickery or deception. There was certainly no purpose to mislead or conceal on the part of Campbell or the agent. The...