Connecticut Mut. Life Ins. Co. v. Pyle

• Decision Date: 26 January 1886
• Citation: 4 N.E. 465,44 Ohio St. 19
• Parties: CONNECTICUT MUT. LIFE INS. CO. v. PYLE.
• Court: Ohio Supreme Court

4 N.E. 465

44 Ohio St. 19

CONNECTICUT MUT. LIFE INS. CO. v. PYLE.

Supreme Court of Ohio.

January 26, 1886

[Copyrighted Material Omitted]

Error to district court, Ross county.

August 1, 1878, Jeremiah Pyle brought suit against the Connecticut Mutual Life Insurance Company to recover back the premium paid for a policy that the company had canceled. Pyle in his petition says, that on August 21, 1872, the defendant, by its agent, one John A. Nipgen, duly authorized to take applications for life insurance in the company of defendant and to receive the cash premium thereon, applied to plaintiff at his home, ‘ Pyle Farm,’ in Ross county, and requested him to take a policy of insurance in defendant's company upon the life of plaintiff. At first plaintiff refused to do so on account of having no money when Nipgen offered to advance to or loan plaintiff the money to make the first payment on the policy, to which proposition plaintiff acceded, and then told Nipgen that he, plaintiff had failed in getting a policy of insurance, in June, 1871, in the Charter Oak Insurance Company, of which Mr. Schutte was agent, on account of something being the matter with his pulse. Nipgen then asked plaintiff if the application had been sent to the company; plaintiff replied that it had not as he knew of; to which Nipgen responded that ‘ if it had not gone any further than that it did not make any difference; ’ and thereupon plaintiff agreed with defendant, acting by its agent, to make application for a policy of insurance upon his life in defendant's company for the sum of $10,000, the same to be paid at the office of defendant in Hartford, Connecticut, to Ede Pyle, wife of plaintiff, if she survived him, if not, to the children of plaintiff, or their legal representatives, etc. The said Nipgen, having a blank application, then commenced asking plaintiff the questions required to be asked of an applicant by the ‘ statement of particulars respecting the person whose life is proposed for insurance, and which statement forms a part of the contract of insurance,’ and which are the same questions attached to the policy afterwards issued by defendant, and plaintiff answered them until Nipgen came to this question, ‘ Has any company ever declined to grant insurance on your life?’ when he, Nipgen, said he would just answer that question ‘ no.’ Plaintiff told him ‘ it was something he knew nothing about; ’ that he could do just as he pleased about that. Nipgen thereupon put down in answer to said question, ‘ no.’ Plaintiff and Nipgen, on the same day, went to Hallsville, to Dr. Gildersleeve, who, owing to the absence of the regular examining physician of the defendant, examined plaintiff, and thereupon Nipgen told Gildersleeve to answer all the medical questions ‘ no,’ -meaning the ‘ Questions to be answered by the Medical Examiner of the Connecticut Mutual Life Insurance Company,’ and they were so answered. Plaintiff then signed said application for his wife and himself, as required, and executed his note, payable to the order of Nipgen at the First National Bank of Chillicothe, Ohio, four months and ten days after date, for the sum of $219.20, with interest, being the amount of ‘ cash premium’ required to be paid, and which note having been indorsed by Nipgen, plaintiff afterwards, at maturity, paid. The application was sent to the company, and a policy, No. 119,633, of date August 31, 1872, in said amount, on plaintiff's life, issued, and shortly afterwards was delivered to plaintiff. Upon reading the policy about a month afterwards plaintiff found it contained, among others, the following conditions and agreements:

‘ This policy is issued and accepted upon the following express conditions and agreements: (1) That the answers, statements, representations, and declarations, contained in or indorsed upon this application for this insurance (which application is hereby referred to and made part of this contract) are warranted by the insured to be true in all respects; and that, if this policy has been obtained by or through any fraud, misrepresentation, or concealment, that this policy shall be absolutely null and void. * * * (4) That in every case in which this policy shall cease and determine, or shall become null and void, all premiums paid in respect of the same shall be forfeited to the company.’

At the foot of the application, and a part thereof, is the following:

‘ It is hereby declared and warranted that the above are fair and true answers to the foregoing questions; and it is acknowledged and agreed by the undersigned that this application shall form a part of the contract of insurance, and that if there be in any of the answers herein made any untrue or evasive statements, or any misrepresentations or concealment of facts, then any policy granted upon this application shall be null and void; and all payments made thereon shall be forfeited to the company.’

Plaintiff then called on Nipgen and referring him to the terms of the policy told him that he thought it was of no account, owing to the answer ‘ no’ to the question whether any company had ever declined to grant insurance on his life. He said that plaintiff should bring the policy in and get it corrected, and that he would write to the company about it. Plaintiff took the policy to Nipgen, and Nipgen wrote to the company stating that said question should have been answered ‘ yes' instead of ‘ no,’ and stated how far the Charter Oak matter had gone in plaintiff's case. Plaintiff signed the letter, and Nipgen mailed it. About three or four weeks afterwards plaintiff inquired of Nipgen about the matter, and was told that the company had said that plaintiff had better go before Dr. Scearce and be re-examined. About a week after plaintiff did so, and was asked about his heart, and answered that it bothered him sometimes; that after working hard he got weak and nervous sometimes; that he took whisky and ginger for it. Plaintiff left, and they made out the application. Plaintiff called on Nipgen repeatedly about the matter, and he claimed that he had not yet heard from the company; then, about two months after, that the application (meaning the new or corrected one) had been mislaid in the Cincinnati office of defendant. Then Nipgen and Scearce made out another application and sent it on. This was the third application, and was made without the knowledge of plaintiff. When plaintiff again called on Nipgen he was informed by him that the company had declined his application.

There were attempts to get a new or corrected policy in place of the the original one. One August 1, 1873, or thereabouts, plaintiff informed Nigpen that he was ready to make payment whenever he, Nipgen, would get it fixed. The defendant, upon receiving the third application, and without the knowledge or consent of plaintiff, canceled and annulled said policy of August 31, 1872. This was, as plaintiff thinks, at or about the expiration of one year from the time it was issued. Upon being informed of said cancellation of said policy some time in September, 1873, the precise time not now remembered, plaintiff demanded from said agent and said company the repayment of his money so paid as premium, which was refused. Wherefore plaintiff prays judgment against said defendant for said sum of $219.20, with interest thereon from August 31, 1872; or, if the court shall be of opinion that an action to recover back the money paid is not the proper action, then that the plaintiff may recover from the defendant the sum of $500, his damages herein sustained; or that defendant, upon being paid the back premiums on said policy, may be ordered to rescind the cancellation and annulling of said policy, and to correct the same as to said answer mentioned, according to the fact, and for other proper relief.

A demurrer to this petition was overruled, and the insurance company answered, denying that plaintiff ‘ told said Nipgen that he, plaintiff, had failed in getting a policy of insurance in June, 1871, in the Charter Oak Insurance Company, of which Mr. Schutte was agent, on account of something being the matter with his pulse; ’ that ‘ Nipgen then asked plaintiff if the application had been sent to the company; ’ that ‘ plaintiff replied that it had not as he knew of, to which Nipgen responded that if it had not gone further than that it did not make any difference,’ and says that no such conversation took place between the plaintiff and said Nipgen; also the company denied other specific allegations, but it did not deny that its agent, Nipgen, wrote the application. To this answer plaintiff replied, denying some specific allegations of the answer.

On the trial, by request of defendant, the court found as its conclusions of fact that in addition to the facts admitted by the pleadings, that several of the answers to questions contained in the application of the plaintiff,...