Carroll v. Mutual Life Ins. Co. of New York
| Decision Date | 17 June 1929 |
| Docket Number | 29665 |
| Court | Louisiana Supreme Court |
| Parties | CARROLL v. MUTUAL LIFE INS. CO. OF NEW YORK |
Rehearing Denied July 8, 1929
Appeal from Fourth Judicial District Court, Parish of Ouachita; J T. Shell, Judge.
Action by Mrs. Cora I. Carroll against the Mutual Life Insurance Company of New York. From a judgment for plaintiff, defendant appeals.
Affirmed.
Frederick L. Allen, of New York City, Montgomery & Montgomery, of New Orleans, and Stubbs & Thompson, of Monroe, for appellant.
Shotwell & Brown, of Monroe, for appellee.
O'NIELL C. J. THOMPSON, J., recused.
O'NIELL, C. J.
This is a suit on a policy of insurance for $ 3,000 on the life of the plaintiff's husband. She is the beneficiary under the policy. The company defendant the suit on the ground that, the policy having lapsed for nonpayment of a premium, the insured obtained a reinstatement without a medical examination, on the false and fraudulent statement that he had not had any illness or disease, and had not consulted a physician since the date of the policy, when in fact he was suffering with angina pectoris, had consulted a physician, and died of the disease, less than eight months after the policy was reinstated. The district court gave judgment for the plaintiff. The defendant has appealed.
In the application for reinstatement of the policy, the following question was asked, to which the insured answered, "None," viz.:
"State each illness, disease, injury, or surgical operation had by the insured during the past five years, or since the date of the policy, if less than five years in force, and the name and address of each physician or practitioner consulted?"
As the policy was two years and a few days old, and was therefore incontestible for any cause, when it lapsed, the inquiry as to whether the insured had any illness or disease or had consulted a physician was confined to the period between the date of the policy and the date of the application for reinstatement. He did consult his family physician during that period concerning an ailment which both the insured and the physician thought was indigestion, but which may have been, and very likely was, the ailment of the heart called angina pectoris, which caused the death of the insured. The evidence leaves no doubt in our mind that there was no fraud or willful misrepresentation in the statement of the insured that he had not had any illness or disease and had not consulted a physician since the date of the policy. The insured was a mechanic. He and the physician were very intimate friends. The physician consulted the insured about automobile troubles, and the insured consulted the physician about the supposed stomach trouble. And it is quite likely that the insured did not regard the consultations on the subject of his indigestion as serious, professional consultations. The physician so testified, and we believe the testimony.
Answers to questions propounded in an application for reinstatement of a life insurance policy, as to the condition of health of the insured and consultation of physicians subsequent to the date of the policy, are, in the absence of fraud, deemed representations and not warranties. Act No. 227 of 1916, p. 492, re-enacting Act No. 52...
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