Cont'l Cas. Co. v. Owen

Decision Date04 February 1913
Docket NumberCase Number: 3761
Citation131 P. 1084,38 Okla. 107,1913 OK 77
PartiesCONTINENTAL CASUALTY CO. v. OWEN.
CourtOklahoma Supreme Court
Syllabus

¶0 1.TRIAL--Direction of Verdict--Weight of Evidence. In trials by jury in this jurisdiction, it is only where the facts, although undisputed, are such that all reasonable men must draw the same conclusion from them that the court is authorized to direct a verdict.

2.INSURANCE--Action on Policy--Question for Jury. Generally the question of the falsity of the statements contained in a life or accident insurance policy, and the intent of the applicant in making them, are for the Jury.

3.SAME--Evidence. In an action on an accident insurance policy there was a sharp conflict in the evidence as to whether the insured was suffering from acute or chronic nephritis about 30 days prior to the issuance of the policy. A physician who was called into the case at that time, and who attended the insured until a few days prior to his death from an accidental gunshot wound inflicted about 30 days after the issuance of the policy, testified that he found the insured suffering from an acute attack of nephritis; that he responded readily to treatment for that disease, and within a few days commenced to show marked improvement; that within two or three weeks he was practically restored to health; that "his color was as good and he was as healthy looking as anybody during the latter part of the time I was treating him;" that an examination of the urine and the symptoms indicated that his recovery was complete. Held, that whether the insured was suffering from a "defect in the body," within the meaning of that phrase in a statement of the insured indorsed on the policy to the effect that he had no "defect in body," was a question for the jury.

4.SAME--False Representations in Application--Burden of Proof. Under section 3784, Comp. Laws 1909 (Rev. Laws 1910, sec. 6685), statements made in an application for insurance, where the policy was issued without previous medical examination, shall, in the absence of fraud, be deemed representations and not warranties, and in an action upon such policy, where the falsity of such statements is relied upon as a defense, the burden is upon the insurer to show that such statements "are willfully false, fraudulent, or misleading."

5.SAME--Application--Representations--Statement. A statute which provides that statements made in an application for insurance shall be deemed representations and not warranties isremedial in its nature, and quite within the police power of the state.

6.EVIDENCE--Action on Policy--Expert Testimony--Matter in Issue. Evidence is inadmissible to show that facts suppressed or falsely represented in an application for insurance would have been deemed material by the insurance company, and that the company would not have issued the policy or would have canceled same if issued, had it known the truth in regard there to, but insurance experts may state the usages of insurance companies generally in respect to charging higher rates or premiums or in rejecting risks or in cancelling policies, if issued, when made aware of the particular facts in question.

7.APPEAL AND ERROR--Harmless Error--Refusal of Instructions. It is not reversible error for the trial court to refuse to give an instruction based upon incompetent evidence introduced over the objection of the adverse party, when it does not appear that the party who requested such instruction was deprived of any substantial right thereby.

8.TRIAL--Action on Policy--Instruction. Where, in an action on an insurance policy, a requested instruction was correct in so far as it defined the duty of the Jury if they found certain facts to exist in relation to statements made by the insured in his application, but was erroneous in stating that such statements were entitled to the status of executory stipulations or promissory warranties, and that a breach thereof rendered the policy void from its inception, whether the thing warranted is material or not, it is properly refused.

9.INSURANCE--Action on Policy--Evidence--Admissibility. That part of section 3784, Comp. Laws 1909 (Rev. Laws 1910, sec. 6685), which provides: "In any claim arising under a policy which has been issued in this state by any life insurance company, without previous medical examination or without the knowledge and consent of the insured, or in case said insured is a minor, without the consent of the parent, guardian, or other person having legal custody of said minor, the statements made in the application shall, in the absence of fraud, be deemed representations and not warranties: Provided, however, that the company shall not be debarred from proving as a defense to such claim that said statements are willfully false, fraudulent or misleading, and, provided, further, that every policy which contains a reference to the application of the insured, either as a part of the policy or as having and bearing thereon must have attached thereto a correct copy of the application, and unless so attached the same shall not be considered a part of the policy or received in evidence"--does not prevent proof that statements made in the application are willfully false, fraudulent, or misleading by the introduction of the application in cases where the policy contains no reference thereto either as a part of the policy or as having any bearing thereon.

10.SAME--Statements in Application--Construction--Indorsement on Policy--Effect. Under section 3784, Comp. Laws 1909 (Rev. Laws 1910, sec. 6685), statements made by the insured in his application must be construed as representations and not warranties, and this requirement of the statute cannot be evaded by indorsing such statements upon the policy which also contains a provision to the effect that the policy is issued in consideration of such statements, each of which the insured by accepting the policy warrants to be full, complete, and true.

11.SAME--Policy--What Law Governs. Where the insured was a resident of this state, where the policy was signed, delivered, and the premiums paid, the policy is an Oklahoma contract and governed by the laws of this state, though the insurer was a foreign corporation, doing business in this state, and the policy was executed at the home office of the company.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by Lula Owen against the Continental Casualty Company, a corporation. Judgement for plaintiff, and defendant brings error. Affirmed.

Manton Maverick M.P. Cornelius, and Shartel, Keaton & Wells, for plaintiff in error.

F. E. Riddle, for defendant in error.

KANE, J.

¶1 This was an action on an accident insurance policy commenced by the defendant, in error, plaintiff below, against the plaintiff in error, defendant below. Upon trial to a jury there was a verdict for the plaintiff, upon which judgment was entered, to reverse which this proceeding in error was commenced. The policy was issued to Edward G. Owen, husband of the plaintiff, on the 10th day of October, 1910. On the 14th day of November of the same year the insured injured his left foot by the accidental discharge of a shotgun, from which injury, two days later, he died.

¶2 For convenience, the parties will be called plaintiff and defendant, respectively, as they were designated in the court below, and Edward G. Owen will be called the insured.

¶3 The contentions of the defendant are: (1) That the court should have directed a verdict in its favor, for the reason that the evidence showed conclusively that certain statements contained in the application for insurance were material to the risk and were false, and that certain statements contained in a schedule of warranties indorsed on the policy were untrue and false and therefore material to the risk. (2) That the court committed error in giving certain instructions wherein, in effect, it charged the jury that, to defeat the claim of the plaintiff, the burden was upon the defendant to show that the statements contained in the application for insurance of which the defendant complains were false and made with the intent to deceive and defraud defendant, and for the purpose of procuring the insurance. (3) That the court committed error in refusing to give a certain instruction requested by the defendant, to the effect that the statements indorsed on the policy to the effect that the insured would notify the defendant if he applied for insurance in any other company or companies are what are known in law as executory stipulations or promissory warranties, and if they found from the evidence that the insured did not comply therewith, and that if he had, the defendant would have canceled his policy, the verdict should be for the defendant.

¶4 It is admitted that the policy was issued upon the application by the insured for insurance, without a previous medical examination. The application contains certain statements concerning the insured, and the policy also has indorsed thereon what is termed a schedule of warranties, statements covering the same information, as follows:

"This policy is issued in consideration of the following statements, each of which the insured by accepting the policy warrants to be full, complete, and true; and in further consideration of the payment of premium as hereinafter provided. * * *
"G. Except as here stated I have no other accident health insurance in this or any other company. (Give name of company and amount of any other insurance.) No ex.
"J. Except as here stated I 'have not had nor am I now suffering from tuberculosis, rheumatism, paralysis, nor any chronic, periodic, mental or physical ailment or disease, nor have I any defect in hearing, vision, mind, or body. No ex."

¶5 The first contention of defendant is based upon the theory that the evidence conclusively shows that the insured at the time the policy was issued had a defect in body within the meaning of that term as...

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