Hann v. National Union

• Decision Date: 17 November 1893
• Citation: 56 N.W. 834,97 Mich. 513
• Court: Michigan Supreme Court
• Parties: HANN v. NATIONAL UNION.

56 N.W. 834

97 Mich. 513

HANN v. NATIONAL UNION.

Supreme Court of Michigan

November 17, 1893

Error to circuit court, Kent county; William E. Grove, Judge.

Action by Sarah Hann against the National Union on a policy of insurance on the life of plaintiff's son, B. B. Hann. Judgment for plaintiff. Defendant brings error. Affirmed.

Stuart & Knappen, for appellant.

Smiley. Smith & Stevens, for appellee.

LONG J.

This is an action of assumpsit, brought upon a benefit certificate for $3,000, issued by the defendant, a fraternal and beneficiary order, having its main office at Toledo, Ohio with subordinate lodges in different cities, to one B. B Hann, and payable in case of his death to his mother, the plaintiff. Application for membership was made by B. B. Hann August 13, 1891. He was examined by the medical examiner September 18th, and the certificate was issued of the date of September 24th. He died October 3, 1891, of cerebral meningitis. Payment is resisted by the defendant upon the claim that B. B. Hann was not in good health when he made application for membership, nor when he was granted the certificate. The case was tried in the circuit court, before a jury, who returned a verdict in favor of the plaintiff for the full amount of the certificate, with interest. The errors complained of relate entirely to the charge of the court and refusal of the court to give certain requests of the defendant. The application for the insurance was in writing addressed to the officers and members of the Grand Rapids Council, No. 32, located at Grand Rapids, this state, and states, among other things: "I do declare upon my honor as a man that the statements by me subscribed herein are each and every one of them true, to the best of my knowledge and belief. * * * I am temperate in my habits, and have no injury or disease which will tend to shorten my life. Am now in good health, and able to gain a livelihood." It also contained the further statement: "I do hereby consent and agree that any untrue or fraudulent statement made above or to the medical examiner, or any concealment of facts by me in this application, or my suspension or expulsion from or voluntarily severing my connection with the order, shall forfeit the rights of myself and my family or beneficiary to all benefits and favors herein." After the application was made, he presented himself to the medical examiner, who filled out a blank prepared for that purpose, giving answers to questions therein set forth. Among such was asked: "Is there anything to your knowledge or belief in your physical condition, family, or personal history or habits tending to shorten your life, which is not distinctly set forth above?" Answer: "No." The benefit certificate contained the following provision: "This certificate is granted upon the express condition that all statements and representations made by said member in his application for membership in said council, and all statements made to the medical examiner by him, are true." The certificate also contained the further provision: "The application of the member, and copy of which is hereto attached, is hereby made a part of this certificate."

It was claimed upon the trial by defendant that, at the time the application was made and the certificate issued, Mr. Hann was afflicted with the disease from which he subsequently died, and that, at the time of the application and medical examination, he concealed from the council and medical examiner that he was afflicted with any disease. It was further contended that the statement made in the application, "I am now in good health," means a warranty that he was in good health, and that, if he was not in good health, he could not recover. The court, in its charge, among other things, stated to the jury: "If upon consideration of the whole case, you find that, at the time this contract of insurance was made and the certificate issued, B. B. Hann was not in good health, (within the meaning of the term as I shall explain it to you later,) or that he fraudulently concealed his condition in regard to his health, and was not, in fact, in good health, then the policy is void. By the terms of the policy and application, the parties agreed that the truthfulness of the applicant's answers to the questions propounded should be the basis upon which the validity of the policy should stand. If true, the policy should be a valid one. If untrue, the policy should have no force as a contract. Hence, if you find any statement in the policy or application untrue, concerning which an issue is raised, or any concealment of facts as to the applicant's condition in respect thereto, the policy is void, and the plaintiff cannot recover. By the terms of the policy and application, above recited, the applicant assumed the whole risk of the consequences if his answers turned out untrue. The question as to the health of the applicant is a preliminary one to ascertain if he is an insurable subject. Hence, if you find that B. B. Hann, when he made the application on August 13th, or at any time prior to the issuing of the policy, on September 24, 1891, was not in good health, (within the meaning of the term as I shall presently define it,) then the policy is void, and the plaintiff cannot recover. (5) If you find that, either on August 13th or at any time prior to September 24th, said B. B. Hann was afflicted with cerebral meningitis, the disease of which he died, then the policy is void, and the plaintiff cannot recover. (6) The statements above mentioned, as recited in the policy and application, upon the truth of which the validity of the policy depends, are called 'warranties,' and must be strictly true; but, when there is no warranty, an untrue allegation of a material fact, or a concealment of a material fact, will avoid the policy. (7) The words 'I am now in good health,' occurring in Hann's application, amount to a warranty or representation that he was in good health at the time, and, if he was not in good health, the plaintiff cannot recover." It is claimed that the court was in error in omitting from the fifth statement above set forth the defendant's request, as follows: "It is wholly immaterial whether the applicant knew of the existence of this disease or not. He has stated he was in good health, and he has assumed the whole risk of his answer being true." Defendant has no reason to complain that this request was not given, and still less of the charge, as given, upon this branch of the case. The jury were repeatedly charged that the validity of the policy depended upon the fact of the applicant's health being good, and that the statements made in the application amounted to a warranty; and, in giving this interpretation, the court entirely ignored a very important factor in the application. While it is undoubtedly true that warranties must be literally fulfilled, or the applicant can derive no benefit from the policy, and with respect to the complainant, with warranties there is no latitude,-no equity,-and the only question is, is the thing warranted true? If not, the insurer is not answerable for any loss. Bliss, Ins. � 38. Yet here the application, which is...