Kincaid v. Equitable Life Assur. Soc. of U.S.
| Decision Date | 03 December 1935 |
| Docket Number | 8108. |
| Citation | 183 S.E. 40,116 W.Va. 672 |
| Parties | KINCAID v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES. |
| Court | West Virginia Supreme Court |
Submitted November 20, 1935.
Rehearing Denied Jan. 13, 1936.
Syllabus by the Court.
1. An insurance contract is to be construed according to its own terms. Such contracts vary; and judicial construction thereof must vary accordingly.
2. One authorized by an insurer to prepare the policy application of an insurance prospect will be deemed to represent the insurer fully in the preparation, when the latter has given no notice of a limitation. Under such circumstances, notice to the preparer of a fact relevant to the application is notice to the insurer.
Error to Circuit Court, Ritchie County.
Action by Evert C. Kincaid against the Equitable Life Assurance Society of the United States. Judgment for plaintiff, and defendant brings error.
Affirmed.
Charles W. Louchery and Kendall H. Keeney, both of Clarksburg, for plaintiff in error.
Lilly & Lilly, of Charleston, and S. A. Powell, of Harrisville, for defendant in error.
This action involves the effect on a life and disability insurance policy of untrue health statements in the application for the policy. The plaintiff is the holder of such a policy, and recovered a judgment thereon against the defendant.
The plaintiff is a farmer. He was solicited in June, 1931, to make application for the policy by Page Morrison and T. B McQuain. Morrison was "insurance salesman" and "soliciting agent" of defendant. He also was a district supervisor in charge of defendant's local agents. (His district comprised all of West Virginia and parts of three other states.) McQuain was a local soliciting agent of defendant. Plaintiff testified that when approached by the two, he informed them he did not consider himself a desirable insurance risk because he had suffered a fractured skull in 1929 serious enough to require hospitalization for several days. However, he had been in seemingly sound health since the injury; so the insurance agents insisted that he submit to a physical examination by Dr. Rymer, the defendant's physician, which the plaintiff did. In connection therewith, the doctor read to plaintiff certain questions on defendant's printed application form respecting plaintiff's past health and medical treatment purported to record plaintiff's answers thereon and had him sign the application. Both Morrison and McQuain countersigned the application. Plaintiff testified that in response to Dr. Rymer's interrogation he related to the doctor his injury and consequent treatment in 1929. The answers written in the application by the doctor negatived any past injury. The application was forwarded to the defendant and was attached to and made a part of the policy in question. Morrison and McQuain delivered the policy to plaintiff, and congratulated him on passing a favorable physical examination. The plaintiff testified that he did not read the application when he signed it and did not read either the application or the policy until this controversy arose.
Morrison paid the first (annual) premium ($434.40) for plaintiff, accepting the latter's notes (without interest) which were later paid. When the second premium became due, plaintiff considered letting the policy lapse; but both McQuain and Morrison urged him to pay the premium, saying that he could not buy another policy "as good" as the instant one, and that if he did not have the full amount of the premium, arrangements could be made with the defendant to carry him, which was done. Plaintiff commenced to suffer mental disturbances in the fall of 1932, which incapacitated him from regular work. His malady continued and in the spring of 1933, he filed with defendant a disability claim, which was rejected. The defendant also notified him that, having learned of the falsehood of certain material answers made by him to questions in his application for insurance, the disability and double indemnity provisions of his policy were rescinded. The defendant tendered plaintiff the premiums paid for those provisions, which tender was refused. Plaintiff was examined shortly before the trial herein (July, 1934) by a neurologist who testified that, in his opinion, the plaintiff had neurasthenia, which permanently disabled him from performing any sustained physical or mental work, and that there was no causal connection between plaintiff's injury in 1929 and his present condition. No testimony opposed this opinion.
Dr. Rymer denied that he was informed by plaintiff of his 1929 injury and treatment when the latter was answering the questions in his application for the policy. Morrison testified that the plaintiff's testimony was ""substantially correct"; that plaintiff did inform the witness and McQuain of his injury and treatment in 1929, but that the witness did not impart the information to the defendant because, as he said, "that was out of my authority." McQuain was not called as a witness.
The jury found a general verdict for plaintiff and in addition thereto answered in his favor a special interrogatory asking if he informed Dr. Rymer of the 1929 accident and the treatment incident thereto.
The defense is based on certain provisions in the application and policy. The application is in two parts. Part 1 contains the following covenant:
The policy covenants...
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