Chitwood v. Prudential Ins. Co. of America

• Decision Date: 10 September 1965
• Citation: 206 Va. 314,143 S.E.2d 915
• Court: Virginia Supreme Court
• Parties: , 14 A.L.R.3d 923 Christine H. CHITWOOD v. PRUDENTIAL INSURANCE COMPANY OF AMERICA.

Page 915

143 S.E.2d 915

206 Va. 314, 14 A.L.R.3d 923

Christine H. CHITWOOD v. PRUDENTIAL INSURANCE COMPANY OF AMERICA.

Supreme Court of Appeals of Virginia.

Sept. 10, 1965.

John H. Kennett, Jr., Roanoke, for plaintiff in error.

Eppa Hunton, IV, Richmond, (Lewis T. Booker, Hunton, Williams, Gay, Powell & Gibson, Richmond, on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEDA, I'ANSON, CARRICO and GORDON, JJ.

SPRATLEY, Justice.

The plaintiff, Christine H. Chitwood, whose true name is Christine D. Brown, instituted this action by motion for judgment seeking to recover from the Prudential Insurance Company of America the amount of a life insurance contract issued by it on March 5, 1962, to James O. Chitwood, Jr., who died of a gunshot wound on May 8, 1962. The insurance policy designated plaintiff as a beneficiary thereunder, describing her as the wife of the insured.

The Prudential Insurance Company of America filed its answer and grounds of defense, in which it denied liability upon the grounds that no proper proof of the death of Chitwood had been furnished it and that the insured had committed suicide within two years of the date of the insurance policy. Plaintiff thereafter filed an amended motion for judgment, which was substantially the same as her original motion, except that it alleged tender of proof of death and slightly reduced the amount of her claim.

Subsequently, Prudential filed interrogatories seeking the answer of the plaintiff to two questions, to-wit: (1) 'When, where and by what court plaintiff was divorced from Calvin D. Brown,' and (2) 'When and where plaintiff married James O. Chitwood, Jr.?'

On February 8, 1963, plaintiff filed her answer, under oath, in which she stated:

'(1) The Plaintiff employed counsel to obtain her divorce in the early part of the year 1961 and thought that she had been divorced by a decree of the Hustings Court of the City of Roanoke, Virginia. Her counsel in this action has examined the papers of said divorce cause; and, based on his advice to her, the Plaintiff states that she was never properly divorced from Calvin Dempsie Brown.

'(2) The Plaintiff was married to James Oliver Chitwood, Jr., in Chesterfield, South Carolina, on November 26, 1961.'

On February 26, 1963, Prudential was, by leave of court, allowed, over the objection of plaintiff, to file an amended answer and grounds of defense, which alleged that Chitwood, in his application for the insurance policy stated that plaintiff was his wife, 'which statement was untrue when made and at the time the policy sued on was issued and was material to the risk assumed by the defendant under the policy.'

Plaintiff filed a response saying that Chitwood in his application 'did not make a false statement of fact, but only made an erroneous conclusion of law concerning the legal validity of a marriage ceremony actually performed.' She denied that the validity of her marriage was material to the risk, and averred that Prudential had waived all warranty defenses.

Prudential moved for summary judgment upon the ground that it appeared from the pleadings and the admissions of plaintiff in her answers to the interrogatories, that the statement of Chitwood in his application was false, and as a matter of law, material to the risk assumed, and no material fact relating thereto was in dispute.

Evidence was then heard on the issues raised, and the trial court, after consideration of the pleadings, the evidence and argument of counsel, sustained the motion of the insurance company for the reasons stated therein. Judgment was entered for Prudential, and we granted this writ of error.

The facts are without material conflict. It was undisputed that the representation in the application for insurance as to the status of the plaintiff was false and untrue, and hence we need only consider the question: Was the false representation material to the risk assumed by Prudential? The answer is yes.

The pleadings, the evidence, and the admissions of the parties show the following facts:

James O. Chitwood, Jr., made a written application to Prudential for what is termed a 'family policy' covering his life, the life of the plaintiff, and the lives of her two children by her marriage prior to 1957 to Calvin D. Brown. In his application for the insurance, attached to and made a part of the policy, issued on March 4, 1962, Chitwood stated and listed Christine D. Chitwood as his wife and as a beneficiary under the policy. He also further stated: 'Children's last name is Brown. Their mother and father were divorced Feb. 1960.'

In plaintiff's answer to interrogatories, it will be noted that she stated that she 'employed counsel to obtain her divorce in the early part of the year 1961 * * *.' Thus both statements of Chitwood were untrue. Plaintiff was, in fact and in truth, the wife of Calvin D. Brown, although she had gone through a marriage ceremony with Chitwood in South Carolina on November 26, 1961, and was living with the latter in or near Roanoke, Virginia.

Four witnesses testified with respect to the materiality of the misrepresentation of the plaintiff's marial staus. John F. Jolly, Roanoke Office Manager of Prudential; Floyd N. Bailey, Secretary-Vice President for underwriting of Shenandoah Life insurance Companyf and Edward F. Clark, a Senior Underwriting Consultant for Prudential, were each called by Prudential, and Robert H. Woodward, Chief Underwriter for Estate Life Insurance Company of America, formerly employed by Prudential, was called on behalf of the plaintiff. The testimony of each of the four witnesses establishes clearly, without contradiction, that Prudential would not have written a family plan policy, such as was issued to Chitwood, had it been told the truth about the marital status of the plaintiff in Chitwood's application for the insurance.

Bailey and Clark said that one actuarial reason a company would not write a policy such as the one involved here is the increased hazard of violent death. Jolly said that: 'Well, living together, unmarried, does not improve the mortality tables any; it is a poor risk.' Woodward testified that his company, under the circumstances stated here, would not have written the policy of insurance.

Section 38.1-336, Code of Virginia, 1950, [Repl. Vol. 1953] sets forth the circumstances under which a false representation in an application for insurance bars recovery on the policy:

' § 38.1-336. When answers or statements of applicant not to bar recovery on policy.--All statements, declarations and descriptions in any application for a policy of insurance or for the reinstatement thereof shall be deemed representations and not warranties, and no statement in such application or in any affidavit made before or after loss under the policy shall bar a recovery upon a policy of insurance, or be construed as a warranty, anything in the policy to the contrary notwithstanding, unless it be clearly proved that such answer or statement was material to the risk when assumed and was untrue. (Code 1950, § 38-7; 1952, c. 317.)'

The marriage of plaintiff to Chitwood in South Carolina was void in that State, § 20-6 of the Code of Laws of South Carolina, 1962, and it was also void in Virginia, where the parties cohabited, § 20-43, Code of Virginia.

It is immaterial what the plaintiff or Chitwood may have thought the facts were concerning her...