Great Western Life Ins. Co. v. Sparks
| Decision Date | 13 May 1913 |
| Citation | 132 P. 1092,38 Okla. 395,1913 OK 304 |
| Parties | GREAT WESTERN LIFE INS. CO. v. SPARKS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 24, 1913.
Syllabus by the Court.
Under section 3784, Comp. Laws 1909, the plaintiff in an action upon an insurance policy is not required to allege performance of promissory warranties or conditions subsequent, but only of conditions precedent. Promissory warranties and conditions subsequent are matters of defense to be pleaded by the defendant, and it is not necessary that the plaintiff anticipate such defense and negative them by averring performance.
In an action on a life insurance policy where one of the defenses set up in the answer was that the insured had falsely and fraudulently answered certain questions propounded to him in his application for insurance, it was error to admit evidence to the effect that the general reputation of the insured for being a truthful and honest man in the neighborhood in which he resided was good, for the purpose of rebutting direct evidence tending to establish the allegation of fraud.
Error from District Court, Oklahoma County; John J. Carney, Judge.
Action by J. B. Sparks, administrator of the estate of Edward G Owen, against the Great Western Life Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Bond & Melton and Wm. Thomason, all of Chickasha, for plaintiff in error.
F. E Riddle, of Chickasha, for defendant in error.
This was an action on a life insurance policy commenced by the plaintiff in error as administrator of the estate of Edward G. Owen, deceased, against the Great Western Life Insurance Company, a corporation. Upon trial to a jury there was a verdict for the plaintiff, upon which judgment was duly entered, to reverse which this proceeding in error was commenced. Hereafter, for convenience, the parties will be designated as the insurance company, the administrator, and the insured, respectively. The insured in the instant case is the same as in the cases of Continental Casualty Company v. Lulu Owen, 131 P. 1084, and Lulu B. Owen v United Surety Company, 131 P. 1091, recently decided by this court but not yet officially reported. It was admitted that the policies involved in those cases were subject to the provisions of section 3784, Compiled Laws of Oklahoma 1909, to the effect that statements made in the application shall in the absence of fraud be deemed representations and not warranties.
In the instant case the application for insurance contains a stipulation to the effect that all statements of the insured "shall in the absence of fraud be deemed representations and not warranties." We take it, therefore, that, by virtue of the statute in the former cases and the stipulation in this, the status of the statements made by the insured for the purpose of securing insurance are identical in all; and, as what we have already said on that subject in the former cases is applicable to this, we do not deem it necessary to notice herein that branch of this case. Another question raised in this case has, in a measure, been settled by a recent decision of this court (Western Reciprocal Underwriters Exchange v. Coon, 133 P. ___, not yet officially reported). The first paragraph of the syllabus reads as follows:
In the instant case the plaintiff, in conformity with section 5662, Compiled Laws of Oklahoma 1909, alleged in his petition the due performance of all the conditions precedent contained in the contract of insurance. The answer of the insurance company contained a general denial and allegations to the effect that certain conditions of the policy had not been performed, to which by way of reply the plaintiff set up a general denial and that the defendant waived performance of the unperformed conditions. We have not inquired very closely into whether any or all of the conditions alleged to be unperformed are conditions precedent, subsequent, or promissory warranties, for the reason that compliance with the conditions precedent was put in issue by the allegation of the petition to the effect that such conditions were all duly performed and the general denial contained in the answer. Noncompliance with promissory warranties and conditions subsequent are matters of defense to be pleaded by the defendant; and, as the insurance company in its answer gave to the conditions alleged to have been violated the status of conditions subsequent or promissory warranties, it was not error for the administrator and the court to treat them as such.
Under section 3784, Comp. Laws 1909, the plaintiff in an action upon an insurance policy is not required to allege performance of promissory warranties and conditions subsequent, but only of conditions precedent. Promissory warranties and conditions subsequent are matters of defense to be pleaded by the defendant, and it is not necessary that the plaintiff anticipate such defense and negative them by averring performance. Western Reciprocal Underwriters Exchange v. Coon, supra.
What we have said above in connection with what is applicable from the foregoing cases sufficiently covers all the questions presented by the record before us to avoid error upon a retrial...
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