Lincoln Health & Accident Ins. Co. v. Jones
| Citation | 52 P.2d 793,1935 OK 1111,175 Okla. 211 |
| Decision Date | 12 November 1935 |
| Docket Number | Case Number: 23543 |
| Parties | LINCOLN HEALTH & ACCIDENT INSURANCE CO. v. JONES. |
| Court | Supreme Court of Oklahoma |
¶0 1. APPEAL AND ERROR -- HARMLESS ERROR -- Variance Between Proof and Allegations in Bill of Particulars.
A variance between proof and the allegations contained in a bill of particulars filed in an action pending in a court governed by justice of the peace procedure, which does not change the nature of the plaintiff's cause of action, and does not mislead the defendant or affect his substantial rights, is harmless error.
2. INSURANCE--Life Policy Construed as of It Contained Two-Year Incontestable Clause Required by Statute.
A life insurance policy issued by a domestic corporation which, in violation of section 10524, Okla. Stats. 1931, subd. 3, fails to contain the two-year incontestable clause, will be construed as if such clause had been incorporated in the policy at the time of its issuance and delivery.
3. SAME--ACTION ON POLICY--Defense Based on Misstatement of Age of Insured not Available When Interposed More Than Two Years After Policy Issued.
The misstatement of age clause contained. in the fourth subdivision of section 10524, Okla. Stats. 1931, when properly interpreted, and considered in connection with the incontestable clause contained in the third subdivision of the same statute, will preclude a defense to an action on a life insurance policy which is based upon misstatement of age of the insured, when such attack is interposed more than two years after the date of the issuance of the policy; and this is true alike in the case where the defense seeks to deny liability in toto, as well as in the case where the defense is offered merely to the end that the face amount of the policy be reduced to that which the true age would have purchased had such true age been stated in the policy.
Appeal from District Court, Muskogee County: Enloe V. Vernor, Judge.
Action by Martha Jones, as beneficiary: under certain life insurance policies, against the Lincoln Health & Accident Company, a domestic corporation. Judgment for plaintiff, and defendant appeals. Affirmed.
Thos. W. Leahy and Forrester Brewster, for plaintiff in error.
Kimble, Twine & Robertson, for defendant in error.
¶1 On October 8, 1928, Lincoln Health & Accident Insurance Company, a domestic corporation, issued to Jennett Mclntosh three policies of insurance, which, among other benefits, included also the features of life insurance policies. The beneficiary named in all three of the policies was Martha Jones, the niece of the insured. All premiums due under the policies were paid down to December 15, 1930. The insured died on or about April 8, 1931. All three of the policies called for weekly premium payments, with the proviso that failure to pay four successive weekly premiums shall cause a lapse of the insurance contracts. Soon after the decease of the insured, the beneficiary made demand on the insurance company for payment of the face amount stated in the three policies, and the insurance company having refused to comply with the demand, the beneficiary brought an action in the city court of Muskogee, alleging in her bill of particulars the issuance of said policies, the death of the insured, the designation of the plaintiff as beneficiary under the policies, and specifically alleging that all premiums down to the date of the death of the insured were paid in accordance with the terms of the policies. The procedure of the city court of Muskogee being governed by the rules of practice applicable to justice of the peace courts (sec. 6486, O. S. 1931), no written answer was filed by the insurance company. The trial resulted in a judgment in favor of the plaintiff. The cause was thereupon appealed to the district court where the case was tried to the court and jury de novo, but pursuant to the pleadings originally filed as is provided by section 1022, Okla. Stats. 1931. There the plaintiff again prevailed, and motion for new trial having been duly made and overruled, the cause is before us on appeal from the judgment overruling the motion for new trial.
¶2 At the trial the beneficiary, instead of proving the allegations to the effect that all premiums were paid down to the date of the death of the insured, affirmatively showed that premiums were paid until December 15, 1930; and in order to prevent the operation of the lapse provisions of the policies, she proved that from time to time tenders of premiums due were made and the insurance company refused to accept them, because the insured resisted an attempt by the insurance company to reform the policies by correcting the age therein stated, which the insurance company contended was misstated. To this evidence the insurance company objected upon the ground that the same constitutes a variance and departure from the bill of particulars. The court overruled the objection and this ruling is assigned as one of the errors.
¶3 Thereupon the defendant offered testimony. tending to show that though the age of the insured, as given by her and as stated in the policy, was 50 years on the date the policies were issued, she was in fact on that date 68 years of age. Two of the three policies involved contained provisions to the effect that in the case of misstatement of age the insurance company should be liable for the amount which the true age would have purchased. The third policy provided that if the insured be in excess of 55 years of age at the time the policy was issued, the same should be null and void. The testimony was accordingly offered for the purpose of reducing the face amount of the first two policies to that which the true age would have purchased, and also for the purpose of defending against the third policy upon the ground that the same was void and did not cover the risk from the very beginning. The court sustained an objection to the admission of this evidence, and this too is assigned as error. Motions for directed verdict were interposed by both parties. The court overruled the one interposed in behalf of the insurance company, sustained the one in behalf of the beneficiary, and after first deducting the premiums due under the three policies for the period intervening between December 15, 1930, and April 8, 1931, instructed the jury to return a verdict for the difference. On the verdict so rendered, judgment was duly entered.
¶4 It is first contended by the insurance company that the variance from allegations to the effect that premiums were paid down to the date of the decease of the insured, to proof of tender of premiums, and the consequent estoppel which would arise therefrom. constitutes a fatal variance. Whether this be true had the case originated in a court of general jurisdiction, we need not decide. It is sufficient for our purpose to observe that the action originates in a city court where the rules of pleading and practice are governed by those which apply to justice courts. Section 6486, O. S. 1931 When the case was appealed from the city court to the district court of Muskogee county, the trial de novo was likewise subject to the rules of practice and procedure of the justice of the peace court. Section 1022, O. S. 1931. The bill of particulars in a justice of the peace court may neither be tested nor criticised by the rules prevailing in a court of general jurisdiction where greater precision of pleading is required. The statute creating the pleading known as a "bill of particulars" (sec. 877, O. S. 1931) originates from Kansas. The uniform construction of that statute adopted both by the Supreme Court of Kansas as well as by this court, is to the effect that the pleading in question need only advise the nature of the cause of action, and a variance, which does not change the nature of the action, is harmless error. In Holden v. Lynn, 30 Okla. 663, 120 P. 246, this court quotes with approval the expression of Justice Brewer in the Kansas case of Lobenstein v. McGraw, 11 Kan. 645, wherein Justice Brewer said:
¶5 The nature of the cause of action in the instant case, both when it was brought into court as well as after the variance took place, was and remains an action for breach of a written contract of insurance. It is not contended that the variance complained of affected any of the substantial rights of the insurance company. It is not claimed that the insurance company was surprised by the sudden shift. A different question would be presented had the insurance company moved for continuance because of this shift without notice. It follows, therefore, that the variance is harmless and the error predicated thereon, if error it be, is likewise harmless.
¶6 The next and vital contention is predicated on the court's action with respect to the defense offered by the insurance company. In excluding the evidence offered on the issue of misstatement of age contained in the policy, the court rested its ruling on section...
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