Harris v. New York Life Ins. Co.

• Decision Date: 21 September 1920
• Docket Number: 4000.
• Citation: 104 S.E. 121,86 W.Va. 638
• Parties: HARRIS v. NEW YORK LIFE INS. CO.
• Court: West Virginia Supreme Court

104 S.E. 121

86 W.Va. 638

HARRIS v. NEW YORK LIFE INS. CO.

No. 4000.

Supreme Court of Appeals of West Virginia.

September 21, 1920

Submitted September 14, 1920.

Syllabus by the Court.

A policy of life insurance issued upon an application in which is contained a representation by the insured that one of his parents had died of measles, and was in good health until within two weeks prior to such death, may be avoided by the insurer, upon a showing that such parent died of pulmonary tuberculosis, instead of measles.

A policy of life insurance issued upon an application in which is contained a statement of the insured's family history and which the insured represents to be full and complete in every particular, will be avoided at the instance of the insurer by the failure upon the part of the insured in such application to disclose the fact that one of his sisters had died of pulmonary tuberculosis.

While the condition of health of one applying for a policy of insurance at the time such application is made, as well as the condition o f the health of his relatives is ordinarily matter of opinion, and if the assured, without knowledge that his own health, or the health of such relatives, is in any wise impaired, in good faith answers that the same is good, the policy will not be defeated, even though it turns out that such answer is not correct; yet, if such answer is made with knowledge upon the part of the insured that one or more of the parties in regard to whom the inquiry is made is afflicted with a serious malady, it will constitute a false representation.

Statements in a policy of insurance that the assured had not been treated by any physician within a certain time for any disease or ailment, and had not consulted any physician within such time, are material representations, and the insurer has a right to rely upon the same being made upon the personal knowledge of the insured, and, if they turn out to be false, a policy of insurance issued upon an application containing such false statements may be avoided.

An insane person cannot be said to be in "good health."

Error to Circuit Court, Logan County.

Action by Robert B. Harris against the New York Life Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed, verdict set aside, and cause remanded for a new trial. Brown, Jackson & Knight, of Charleston, for plaintiff in error.

E. L Hogsett, of Logan, for defendant in error.

RITZ J.

On the 29th of May, 1916, Sallie C. Harris, wife of the plaintiff, applied to the defendant for a policy of insurance upon her life. The policy so applied for was issued upon an application in writing, signed by her, in which she represented all of the statements therein made to be true, and to be for the purpose of obtaining said insurance, and that they might be relied upon by the company in acting upon her application. On March 21, 1917, the insured died in Florida of pulmonary tuberculosis, and, upon proof of this fact being furnished to the company, it made an investigation, and claims that it discovered that certain of the representations and statements made by the insured, upon the faith of which the policy was issued, were false. It thereupon repudiated the policy and tendered to the plaintiff here the premium which had been paid thereon. This tender was refused, and this suit instituted for the purpose of recovering the indemnity provided by the policy.

The defendant says that among other statements made by the insured in her application, upon the faith of which the policy was issued, she represented that she had not consulted a physician for any ailment or disease; that she had not within 5 years been treated by any physician for any disease or ailment; that she undertook, in accordance with the provisions of said application, to give true, correct, and full answers in regard to her family history, the answers so given being that her father had died at the age of 65 years from blood poison; that he had been ill one month before his death, previous to which time his health had been good; that her mother had died at the age of 55 years of measles, and that she had been ill for two weeks, prior to which time her health had been good; that she had two brothers and two sisters, all living, and that the health of all of them was good; that she further represented that no person in her immediate household at the time had consumption, or had recently suffered from or died of that disease--when in fact and in truth the insured had consulted several physicians for different ailments prior to the making of said application, and had been treated by several physicians for different ailments within 5 years prior thereto, and was at the time of the making of said application afflicted with pulmonary tuberculosis; that, instead of her father's health being good up until one month prior to his death, he had been confined in an insane asylum for 9 years prior thereto, afflicted with paresis; that, instead of her mother dying from measles, as represented by her, she died of pulmonary tuberculosis; that, instead of her having two sisters, the health of whom was good, she had had four sisters, two of whom were living, and two dead, one of whom had died of tuberculosis in the year 1907, and one of those who was at the time living was then suffering from tuberculosis, and died shortly thereafter from that disease.

The pertinent facts appearing upon the trial of the case without substantial contradiction are: That the insured, about 2 or 3 years before the application for the policy of insurance, had been treated by a physician for about a week for influenza or grippe, and was confined to her bed during that time; that subsequent thereto, and some time before the application was made, she was treated by the same physician for an attack of pleurisy, the said treatment extending over a period of 3 or 4 days, during which time she was confined to her room; that subsequently, and before the application was made, she was treated for a couple of weeks almost every day at the office of another physician for a very bad cold, the treatment administered being by means of what is called an inhalatorium; that subsequent to this, and a short time before the application for the policy of insurance was made, another physician treated her throat and nose for a catarrhal condition; that within a very short time, less than two months after the policy was delivered, she was treated by a physician, who, upon examination, discovered that she was afflicted with active tuberculosis; that he made certain tests and experiments, and demonstrated to his satisfaction that her recovery was impossible; that subsequent thereto, in the month of February, 1917, she was taken to Florida, where she was treated by a physician for tuberculosis, and died of that disease in March of that year; that her mother had died about the year 1903 of tuberculosis; that her father died in April, 1915, of Bright's disease, in the asylum for the insane at Huntington, W.Va., where he had been confined for 9 years prior to his death; that, instead of the plaintiff having two sisters, who were in good health at the time of the application, she had had four sisters, one of whom had died in infancy, from what cause does not appear, and another of whom died in the year 1907 of pulmonary tuberculosis.

There was an attempt upon the part of plaintiff to show that the representation as to the cause of the death of the insured's father was made innocently, and in the belief that he had died of blood poison; the plaintiff stating that, when he and his wife went to the asylum where her father had died, they were cautioned by one of insured's brothers to be very careful not to touch any of the clothes of the deceased because of blood poison, and that they assumed from this that that was the cause of his death. There is no attempt to explain the discrepancy between the actual cause of the death of the mother and the cause represented in the application; nor is there any attempt made to explain why, when the insured had undertaken to give a full and complete family history, she neglected to state that she had a sister who died in 1907 of pulmonary tuberculosis; nor is there any explanation made of her failure to disclose the treatment she had received from various physicians within the 5 years before making the application, the claim in this regard being that the illnesses for which she was treated on those occasions were so trivial as not to call for any disclosures to the company in regard thereto.

Our holdings are that answers to such questions as were propounded to the insured in the application in this case ordinarily constitute representations, and not warranties and the defendant here does not contend that they were in this case anything but representations. It is quite true that, in order for a false representation to constitute ground for the avoidance of a contract, it must be material; but, as we have repeatedly held, when the parties themselves by their contract make such a representation material, the courts are not at liberty to say that such is not the case. Schwarzbach v. Protective Union, 25 W.Va. 622, 52 Am. Rep. 227; Logan v. Assurance Soc., 57 W.Va. 384, 50 S.E. 529; Marshall v. Ins. Association, 79 W.Va. 121, 90 S.E. 847; Myers v. Insurance Co., 83 W.Va. 390, 98 S.E. 424. We are therefore constrained to hold that the representations made by the insured in her answers to the questions propounded to her are material. That they were so considered by the parties is evidenced by the fact that in the application she stated that they were full and complete, and that the insurer could rely upon them in passing upon her application for a policy of insurance; and...