Leftwich v. Inter-Ocean Cas. Co.

• Decision Date: 28 October 1941
• Docket Number: 9190.
• Citation: 17 S.E.2d 209,123 W.Va. 577
• Parties: LEFTWICH v. INTER-OCEAN CASUALTY CO.
• Court: West Virginia Supreme Court

17 S.E.2d 209

123 W.Va. 577

LEFTWICH v. INTER-OCEAN CASUALTY CO.

No. 9190.

Supreme Court of Appeals of West Virginia.

October 28, 1941

Concurring Opinion Oct. 29, 1931.

Syllabus by the Court.

McGinnis & Mann, of Beckley, for plaintiff in error.

Ashworth & Sanders, of Beckley, for defendant in error.

LOVINS Judge.

Arthur Leftwich brought a civil action before a justice of the peace in Raleigh County against the Inter-Ocean Casualty Company on an insurance policy providing for weekly accident and sickness benefits. Judgment was rendered by the justice in favor of the plaintiff in the amount of $127.14, interest and costs. The insurance company appealed to the Circuit Court of Raleigh County, wherein judgment was entered upon a jury verdict for plaintiff in the amount of $125.72, to which action of the lower court this writ of error and supersedeas is prosecuted by the defendant company.

Plaintiff in error filed a plea of general issue and a specification of defense in the circuit court, in which it is alleged that defendant in error's application for the policy contained certain false answers to questions 7 and 8 therein, relating to the soundness of health of the applicant and his freedom from impairment of sight or hearing or any other bodily defects or infirmities. Defendant in error's replication to the specification states that he signed no application for the insurance, but that his wife signed "some kind of a paper for an insurance agent of the *** insurance company", and further that on the effective date of the policy, he was in sound health and was not suffering from impairment of sight for which he is now claiming benefits.

Leftwich was employed as a motorman in a mining operation of the Pemberton Coal & Coke Company at Affinity, West Virginia and had been so employed since 1922. He testified that on February 16, 1940, while at work and running the motor by a "nip", an arc from flashing sparks affected his eyes, causing immediate watering and reddening. He stopped working on that day and claims benefits under the policy issued to him by plaintiff in error, from February 24, 1940 to May 31, 1940, the date action was brought in the justice court. (The policy provided that benefits under Sections 2(A) and 3(A) would begin with the eighth day of disability.)

Two physicians, testifying for plaintiff in error, stated that examination of Leftwich after February 16, 1940, revealed that he was suffering from chronic glaucoma in each eye and that, in their opinion, he was so afflicted before January 8, 1940, the date of his application for insurance with plaintiff in error; Dr. Chambers' estimate was from six months to three years, Dr. Peter's about four months "or possibly more". It is shown that Leftwich was at work when two agents for the insurance company called at his home to solicit the insurance, and that Mrs. Leftwich signed her husband's name to the application; she testified that at the time "they asked me was he in good health, and did he have any kind of chronic disease, or anything like that. *** After I had begun to answer them, Mr. Schmidt (an agent for the insurance company) says, 'Oh, no. I know her husband.' He says, 'He's all-right."'

The application for insurance was introduced in evidence over objection of defendant in error. Questions 7 [123 W.Va. 580] and 8, with answers thereto, are the bases of two of the specifications of defense. It is therefore necessary that we consider the application and its relation to the insurance contract. We note that the insurance premiums are payable on a weekly basis; that the insurance covers indemnity for accident and sickness, and that insurer is an Indiana corporation, with its executive offices located at Cincinnati, Ohio. These facts bring insurer within the provisions of Code, 33-6-2, which require that all agreements with the assured be stated on the face of the policies or certificates of insurance. Construing and applying this statute, Bowyer v. Continental Casualty Co., 72 W.Va. 333, 78 S.E. 1000, holds that an application for insurance in order to be a part of the insurance contract must be attached to the policy, and this principle is approved in Bush v. Indiana & Ohio L. S. Insurance Co., 74 W.Va. 244, 81 S.E. 984; Addison v. Commercial Cas. Insurance Co., 100 W.Va. 1, 129 S.E. 711; and Workman v. Continental Casualty Co., 115 W.Va. 255, 175 S.E. 63. From the record before us, the application does not appear to have been attached to the policy; therefore, we cannot consider it as a part of the contract of insurance. However, the cases cited hold that an application so treated may be considered with other evidence to show fraud in the procurement of the contract. Without considering whether the answers to questions 7 and 8 are false, or whether the application was improperly admitted over a general objection, it is plain from the evidence shown in this record that any implication of fraud in the procurement of the contract is defeated by the uncontradicted testimony of Mrs. Leftwich that an agent for the plaintiff in error supplied the answers to questions 7 and 8.

Defendant in error introduced in evidence, over the objection of counsel for the insurance company, a card, mailed to Leftwich by the insurance company on April 27, 1940, referring to the payment of ten dollars on "your recent claim." The objection interposed was that its purpose could only be to show a waiver of defenses by the insurance company and that waiver had not been pleaded by defendant in error, as required by Code, 56-4-22. Leftwich also testified that "the agent" had brought the ten dollar payment to him, and, over objection, introduced in evidence his "statement of account" for each week from February 24, 1940, to May 31, 1940, which statement indicated payment for the week beginning February 24th and ending March 3rd. At the conclusion of the evidence in chief, offered by defendant in error, plaintiff in error moved to strike the testimony with reference to the ten dollar payment; in overruling the motion, the trial court stated, "I think it can go in for what it is worth, not in particular as a waiver of defenses." Defendant in error contends that the sole purpose of such testimony and exhibits indicating payment of ten dollars is to prove the exact amount of benefits claimed.

While, under the provisions of Code, 56-4-22, there can be no doubt that estoppel in matters of this kind must be pleaded, and it appears that such has not been done here, it also appears that there is no reliance by defendant in error upon waiver or estoppel. In the cases cited by plaintiff in error, applying the statute, matters of waiver and estoppel were relied upon without a plea thereof, and therefore such authorities are distinguishable.

Plaintiff in error contends that the statement of the court just quoted was not made in the presence of the jury and that the jury therefore did not know of any limitation as to the purpose of the evidence in regard to the payment. The record does not show whether that ruling of the court was made within or without the jury's presence. However, we believe that the jury was sufficiently apprised of any objectionable features of the evidence in question as bearing upon waiver, at the time of the original objection thereto. Counsel for the insurance company in objecting had stated, "*** in order to show waiver the statute requires it to be pleaded, and it has not been so done." In answer to the court's question "*** don't you have to stand on your pleadings?", counsel for plaintiff below replied: "*** at the same time I think it is proper to show that they paid him a week. I can show that to bring up the balance that they do owe him. I don't see how else I can prove what they owe him." In view of this latter statement in the presence of the jury, we fail to see how they could have been misled as to the purpose of the evidence to the prejudice of plaintiff in error.

The insurance policy provided for weekly benefits of $10 in Section 2(A) thereof, when the insured is "by reason of accidental injury of which there is external evidence totally disabled from performing work of any nature, and is treated at least once every seven days by a legally qualified physician or surgeon", and also in Section 3(A) of the policy, where the insured is "by reason of sickness, necessarily and continuously confined to the house and visited therein at least once every seven days by a legally qualified physician or surgeon ***." Plaintiff in error asserts that the claim for benefits herein does not...