Jarvis v. Pennsylvania Cas. Co.
| Decision Date | 12 November 1946 |
| Docket Number | 9846. |
| Citation | 40 S.E.2d 308,129 W.Va. 291 |
| Parties | JARVIS v. PENNSYLVANIA CASUALTY CO. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. Where, in an action upon a policy of insurance, insured has made out a prima facie case of loss within the coverage provided by the policy, the burden is upon the insurer to prove the affirmative defense that the loss is one for which the insurer is not liable because it comes within an exception in the policy.
2. False statements, contained in an application for a family hospital and surgical operation indemnity policy of insurance, that insured or any listed member of his family embraced in the policy has not 'had any sickness * * * within the past two years' and that 'all members listed' in the policy are 'now in good health and entirely free from any mental or physical impairment or deformity', coupled with the agreement contained in the application for the policy that 'falsity of any answer herein shall bar right to recover hereunder if it materially affects the acceptance of the risk by the company and that no insurance is effective until this application is approved by the Company and policy issued to and accepted by you while you and the above listed members are in good health * * *', which answers are known to the insured to be in fact false at the time the application was signed, are material misrepresentations, which in the absence of a waiver or an estoppel will avoid the policy.
3. The denial of liability under a policy of insurance on one or more grounds at a time when insurer has knowledge of other grounds of forfeiture, does not result in a waiver or estoppel as to such other grounds, where no prejudice results to the insured from reliance on the initial statement of the insurer.
4. Where an insurer, under an indemnity policy after knowledge of facts which would entitle him to treat the policy as no longer in force, accepts premiums, through an agent, who is clothed with apparent authority to receive them, and by silence acquiesces therein, such insurer is estopped to assert a forfeiture of the policy.
Wm S. Ryan, of Spencer, for plaintiff in error.
Harper & Baker, of Spencer, for defendant in error.
Greely Jarvis brought this action of assumpsit in the Circuit Court of Roane County against Pennsylvania Casualty Company, a corporation, for the recovery of $200 under the terms of a family hospital and surgical operation indemnity policy of insurance. The jury returned a verdict for $187, set out in the . To a judgment entered on the verdict, the defendant prosecutes error.
In view of the issues raised by the pleadings it becomes necessary at the outset to make reference to a number of the provisions of the policy.
The policy, dated September 21, 1943, provides for the period from September 21, 1943, to November 1, 1943, at an initial premium of $4.50, and was issued, according to Section (k) of 'Additional Provisions' of the policy, 'in consideration of an application for insurance, a copy of which is endorsed hereon and made a part hereof.' This same section also provides that 'Upon the expiration of the original term, or any subsequent term for which this policy may have been renewed, the Insured may, at the option of the Company, renew the policy for a term of twelve months by the payment of an annual premium, * * * for a term of three months by the payment of a quarterly premium * * *.' In the 'insuring' clause the company agreed to 'insure Greely Jarvis and each person named and described as 'Member' in the copy of the application endorsed hereon [including wife] subject to all provisions and limitations hereinafter contained against (1) loss due to expenses incurred * * * (b) * * * from disease the cause of which originates more than thirty days after the date of issue of this policy and causes loss beginning while this policy is in force * * *'. Under 'Standard Provisions:
The pertinent questions and answers in the application for the policy, read as follows:
The plaintiff filed the usual form of declaration, under Code, 56-4-17. Defendant demurred to the declaration, which demurrer was overruled, and then filed its plea of general issue under the statute and its plea of non-assumpsit. A statement of particulars of defense was filed and prior to hearing defendant filed its amended statement of particulars of defense, setting up in the latter (1) Fraud in the procurement of the policy in that plaintiff knowingly, wilfully and with intent to deceive, falsely and fraudulently answered question 19, in the application, with 'No', when, in truth and fact, he should have answered 'Yes', and answered question 25 with 'Yes' when he should have answered 'No', and that by virtue of his assent to question 26, the falsity of either barred his right to recover since, according to defendant, Gladys Jarvis, a member of the family, was not in good health at time of the purported acceptance of the policy; (2) falsity of answers 19 and 25, and effect of 26 (similar to above); (3) by virtue of assent to question 26 that no insurance became effective, since between the 17th of September, 1943, and the ___ day of June, 1944, Gladys Jarvis, according to defendant, was not in good health; and (4) under Section (b) of insuring clause, there was no coverage, since, according to defendant, the gall bladder trouble of Gladys Jarvis originated prior to thirty days after the issuance of the policy.
The plaintiff filed what is termed 'pleas of estoppel and waiver' to defendant's original and amended statements of particulars of defense setting up the fact that premiums had been accepted by the defendant company continuing said policy in effect after knowledge of the physical condition of Gladys Jarvis, to which defendant's demurrers were overruled.
The insurance was secured, upon application, dated September 17, 1943, through the company's 'District Managers', Kanawha Valley Insurance Agency, Charleston, West Virginia. Mr. M. A. Bird, District Manager for Pennsylvania Casualty Company, countersigned the policy: 'M. A. Bird, Authorized Licensed Agent.' Bird was also connected with the Kanawha Valley Agency. Premiums were paid ordinarily every three months, according to plaintiff's evidence. One payment receipted for April 5, 1944, paid the policy up through May and June, 1944. And the policy, according to plaintiff, has been continued in effect by payment of subsequent premiums, the last payment having been made in January, 1946.
On April 6, 1944, Mrs. Jarvis went to Dr. Hugh Bailey for a pelvis examination and was referred to the Staats Hospital, Charleston, West Virginia, for further examination. She was admitted to the hospital on April 11, 1944. The physical examination revealed diagnosis of possible gall bladder disease. An X-ray of the gall bladder on April 12, 1944, revealed definite cholelithiasis, with one stone impacted in the cystic duct. The patient was operated on on April 14, and discharged from the hospital on April 28, 1944.
At the time of her admission to the hospital Gladys Jarvis gave a history, as revealed by a letter of Dr. Herbert M. Beddow of Staats Hospital, addressed to Pennsylvania Casualty Company, Kanawha Valley Insurance Agency, and dated May 24, 1944,
A claim was filed with the 'Kanawha Valley Insurance Agency District Managers,' of defendant company, for reimbursement under the policy and within the coverage. While considering the claim the agency, by a Mr. Maxwell, directed a letter, dated May 12, 1944, to Staats Hospital, requesting a complete record of Mrs. Jarvis' case. There was attached a letter of authorization, addressed 'To Whom It May Concern' and signed by the plaintiff. Upon receipt of information from the hospital, to the effect indicated in the preceding paragraph of this opinion, the District Manager, Mr. Bird, on May 26, 1944, directed a letter to the plaintiff notifying him that liability was denied on the...
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