Dyer v. Missouri State Life Ins. Co.

• Decision Date: 09 January 1925
• Docket Number: 18870.
• Citation: 132 Wash. 378,232 P. 346
• Parties: DYER v. MISSOURI STATE LIFE INS. CO.
• Court: Washington Supreme Court

232 P. 346

132 Wash. 378

DYER v. MISSOURI STATE LIFE INS. CO.

No. 18870.

Supreme Court of Washington, En Banc.

January 9, 1925

Appeal from Superior Court, Pierce County; Chapman, Judge.

Action by Nina G. Dyer, administratrix, against the Missouri State Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Bates & Peterson, of Tacoma, for appellant.

Ellis Fletcher & Evans, of Tacoma, for respondent.

PEMBERTON J.

This action was instituted by respondent to recover the amount of a policy of life insurance applied for by C. C. Dyer deceased. It is alleged by respondent that the policy because of the carelessness and negligence of the company was not delivered to the deceased during his lifetime. From a judgment entered upon the verdict of the jury in favor of respondent this appeal is taken.

On the 3d day of August, 1923, C. C. Dyer and Robert B. Thompson, owners of all the stock of a corporation known as Dyer & Thompson, Inc., made application to appellant company for a policy of insurance on the lives of each of the parties in the sum of $10,000. The first premium upon the policies was paid by the corporation. The applications signed by each of the parties provided that the policies, when issued, should be dated and be effective on and from the date of the medical examination. Mr. Dyer submitted to a medical examination by Dr. La Gasa at Tacoma representing the appellant company, and a report of this examination together with the specimen of urine were forwarded to Dr. Ford, medical referee for appellant at Seattle. This report was received on August 6, 1923, and on the same date forwarded by Dr. Ford to the medical referee for appellant at St. Louis, Mo. On August 10th Dr. Ford wrote to Dr. La Gasa, the company's examining physician at Tacoma, as follows:

'You sent me a specimen from C. C. Dyer for no apparent reason. Will you please indicate on the identification slips in the future your purpose in supplying me with accompanying specimen, in order that I may know the reason? As neither of these cases were applying for policies of $25,000, I am at a loss to know what to report on my examination slip which goes to the home office.'

On August 11th Dr. La Gasa, by telephone, advised Dr. Ford that he sent the report because he thought the rules of the company required it. On August 13th the medical director of the company at St. Louis wrote Dr. La Gasa at Tacoma as follows:

'You recently furnished our referee, Dr. C. B. Ford, with specimen of the above applicant's urine. We will appreciate it if you will advise us if there was any special reason for forwarding this specimen to our referee as the amount applied for is only $10,000 and the examination report is favorable.'

Dr. La Gasa replied as follows:

'My nurse and I were both temporarily under the impression that you wanted specimens of urine on $10,000 applications. We have some companies that want urine with 5's, some with 10's, etc. I phoned to Dr. Ford that was the reason for sending the specimens. The examinations were O. K.; good risks therefore.'

It appears that after the telephone conversation between Dr. Ford and Dr. La Gasa on August 11th Dr. Ford did not advise the medical examiner at St. Louis that the report and specimen were sent because of a misunderstanding of the rules of the company on the part of Dr. La Gasa. No further investigation was made on the part of the company. Mr. Dyer met his death by accident on August 20, 1923. His application for insurance was refused on August 21th after the company had been advised of his death.

The application of Robert B. Thompson was of the same date. He was examined by Dr. La Gasa at Tacoma on August 6th. On August 8th the medical report was received by Dr. Ford of Seattle, on August 14th approved, and on August 16th the policy was issued.

It appears from the record that the company failed to issue the policy to the deceased for no other reason than that the medical examiners were mistaken as to their duties toward making the various reports required by the company. While Mr. Dyer's examination was made on the 4th, the policy was not issued on the 20th, the date of his death. While Thompson's medical examination was made on the 6th, this policy was issued on the 16th.

It is contended by appellant that the court erred in permitting the witness Thompson to testify that the soliciting agent stated to Mr. Dyer that the policy would become effective as soon as he took his medical examination. The application itself stated:

'That if the first premium for the insurance hereby applied for be paid to the agent at the time of making this application in exchange for the company's advance premium receipt therefor, corresponding in date and number with this application and signed by the company's agent, the policy, if and when subsequently issued by the company in accordance with the terms of and for the amount and on the plan applied for in this application and delivered to me or my legal representative shall, unless otherwise specifically requested, be dated and be effective in accordance with the provisions of such policy, on and from the date of the medical examination.'

In view of the statement in the application that the policy when issued, would be effective on and from the date of the medical examination, there was no prejudicial error in the court permitting this testimony.

It is next contended that the court erred in permitting the witness Hayes, a soliciting agent, after examining the medical report upon the Dyer application, to testify that the deceased was an insurable risk. While this testimony may have been inadmissible in view of the fact that according to the company's own records the deceased was an insurable risk, the admission of this testimony is not prejudicial error.

It is also contended that the court erred in sustaining plaintiff's objection to the testimony of certain witnesses showing that the deceased was killed in an automobile accident resulting from the excessive use of intoxicating liquor. We find that the court permitted the witness to testify with reference to having found a bottle of whisky near the car after the accident. It is contended that it was error on the part of the court to deny the admission of this bottle of whisky as an exhibit. We are satisfied that the evidence does not sufficiently identify this as the bottle of liquor taken from the car on the date of the addicent, and the request to have it admitted as an exhibit was properly denied.

The appellant contends that the court erred in instructing the jury that no 'oral or written misrepresentation or warranty made in the negotiation of a contract or policy of insurance by the assured or in his behalf shall be deemed material to defeat or avoid the policy or prevent its attaching, unless such misrepresentation or warranty is made with intent to deceive.' This instruction properly states the law, and it was the duty of the court to instruct the jury as to the law.

It is further urged that the court erred in giving the following instructions to the jury:

'The insurance business, being public in character, required an insurance company to act fairly and impartially upon all applications to it for insurance, and to do so with such degree of promptness as its business and a proper investigation of the application and the applicant will permit. * * *

'If you find that defendant negligently failed to act, * * * and that sufficient time elapsed before Dyer's death within which defendant could have completed any necessary investigation, * * * and that no action on the application was taken, then your finding should be for the plaintiff.'

It is claimed that under this instruction, even though the jury may have found that the deceased was not an insurable risk, it would be required to find for the respondent. Considering this instruction together with instruction No. 12 as follows:

'You are instructed that you have a right to presume that if defendant company made a reasonable investigation regarding the health, habits, financial condition and morals of the applicant, C. C. Dyer, in connection with his application for insurance, that it would have learned the truth and the facts regarding him whatever they might be.

'You are further instructed that, if you find from the evidence that upon completing its investigation regarding the applicant Dyer that defendant, in the reasonable exercise of its discretion in carrying on its business, would not have issued a policy of insurance upon said application of C. C. Dyer, then your verdict should be for the defendant. You are also instructed that it is to be assumed that the defendant insurance company would accept the risk if advantageous to it, because that is the business in which it is engaged,'

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