Metro. Life Ins. Co. v. Jankowski

• Decision Date: 30 June 1938
• Docket Number: No. 57.,57.
• Citation: 285 Mich. 291,280 N.W. 766
• Parties: METROPOLITAN LIFE INS. CO. v. JANKOWSKI.
• Court: Michigan Supreme Court

285 Mich. 291

280 N.W. 766

METROPOLITAN LIFE INS. CO.

v.JANKOWSKI.

No. 57.

Supreme Court of Michigan.

June 30, 1938.

Suit by the Metropolitan Life Insurance Company, a foreign corporation, against Joseph Jankowski, also known as Joe Jankowski, for cancellation of a reinstatement of a life policy issued to one Mary Jankowski. From a decree dismissing plaintiff's complaint, plaintiff appeals.

Reversed and remanded for entry of a decree canceling reinstatement of the policy.Appeal from Circuit Court, Wayne County; Mark D. Taylor, judge.

Argued before the Entire Bench.

Bulkley, Ledyard, Dickinson & Wright, of Detroit (R. William Rogers, of Detroit, of counsel), for appellant.

Koscinski, Kaminski, Poleski & Wojcinski, of Detroit, for appellee.

SHARPE, Justice.

We adopt the following statement of facts as found by the trial judge:

‘Plaintiff corporation has filed its bill of complaint in this cause seeking to have decreed null and void a policy of insurance issued to one Mary Jankowski on the grounds of alleged fraud in obtaining said policy of insurance; to have decreed null and void a reinstatement of the said policy and that the defendant be required to deliver the same to plaintiff for cancellation; and that Joseph Jankowski, defendant herein, be restrained by permanent injunction from prosecuting any action for the collection of the proceeds of said policy or from assigning, transferring or otherwise disposing of said policy issued by the plaintiff to the said Mary Jankowski.

‘It appears that Joseph Jankowski, the defendant herein, is the surviving spouse of Mary Jankowski, deceased, and the beneficiary named in said policy.

‘On March 12, 1935, Mary Jankowski signed an application for a policy of ordinary life insurance of the face amount of One Thousand Dollars ($1,000) to be issued by the Metropolitan Life Insurance Company. The soliciting agent was William McDowell in whose handwriting the answers contained in part A of the application are filled in. On the following day Dr. V. L. Van Duzen called at the Jankowski home to make a medical examination of the insured for the company. The answers to the questions appearing in part B of the application were filled in in the handwriting of Dr. Van Dusen at the time of the examination, and this part of the application was duly executed by the applicant on March 13, 1935. The application, which is made a part of plaintiff's bill of complaint, contains, among other things, the following statements and representations to the company:

“I have never had any of the following complaints or diseases: Apoplexy, appendicitis, asthma, bronchitis, cancer or other tumor, consumption, diabetes, disease of heart, disease of kidneys, disease of liver, disease of lungs, fistula, fits or convulsions, goitre, habitual cough, insanity, colic, janudice, paralysis, pleurisy, pneumonia, rheumatism, scrofula, syphilis, spinal disease, spitting of blood, varicose veins.'

“I have not been attended by a physician during the last five years.'

“I have not had any treatment within the last five years at any dispensary, hospital or sanitarium.'

“I have not had any surgical operation, serious illness or accident.'

“The present condition of my health is good.'

“I have no usual medical attendant.'

“I have never been sick.'

‘And over her signature the applicant further stated:

“I hereby certify that I have read the answers to the questions in part A hereof and to the questions in part B hereof, before signing, and that they have been correctly written, as given by me and that they are full, true and complete, and that there are no exceptions to any such answers other than as stated herein.'

‘Applicant further stated in writing as a part of said application as follows:

“It is understood and agreed: 1. That the foregoing statements and answers are correct and wholly true, and, together with answers to questions on part B hereof, they shall form the basis of the contract of insurance, if one be issued.'

“2. That no agent, medical examiner or any other person, except the officers of the company, have power on behalf of the company: (a) to make, modify or discharge any contract of insurance, (b) to bind the company by making any promises respecting any benefits under any policy issued hereunder.

“3. That no statement made to or by, and no knowledge on the part of, any agent, medical examiner of any other person as to any facts pertaining to the Applicant shall be considered as having been made to or brought to the knowledge of the company unless stated in either part A or B of this application.'

“4. That the Company shall incur no liability under this application until it has been received, approved, and a policy issued and delivered, and the full first premium stipulated in the policy has actually been paid to and accepted by the Company during the lifetime of the Applicant, in which case such policy shall be deemed to have taken effect as of the date of issue as recited on the first page thereof.'

‘It appears from part B of the application that the applicant was five feet, one inch in height and one hundred eighty pounds in weight. The applicant's weight being in excess of the Company's requirements, a policy of ordinary life insurance was not issued. In its place the Company submitted a policy in the same amount but classified as Special Class Whole Life Policy, the only difference being that the policy issued required the payment of slightly higher premiums. The policy issued bears date of March 20, 1935, and on or about that date was tendered to the insured. The insured objected to the increase in premiums and did not agree to accept the policy issued until May 10, 1935, (May 22, 1935,?) when she executed a further statement to the Company modifying and confirming the statements made in the original application. The first premium was paid on May 10, 1935, (May 22, 1935,?) and on May 22, 1935, the insured amended her original application by changing the plan of insurance to Special Class Whole Life and accepted delivery of the policy.

‘The policy provided for the payment of quarterly premiums. Being issued March 20, 1935, the second quarterly premium became due June 20, 1935. The insured refused to pay the statement received by her for the second premium due on the policy. She contended that inasmuch as the policy had not been delivered to her until May 22, 1935, premiums should commence as of that date and that the second premium was not due until August 22, 1935. The soliciting agent, McDowell, offered to file an application with the Company to re-date the policy as of the date of delivery in order to accomplish the purpose desired by the insured. After the expiration of the thirty days grace period from June 20, 1935, and the consequent lapsing of the policy, the amount of the second premium, Ten Dollars and Thirteen Cents, was delivered to Mr. McDowell on August 21, 1935, upon the condition that the same might be paid to the Company if the policy was re-dated as requested. The application for re-dating the policy was refused and the premium conditionally delivered to Mr. McDowell was returned to the insured by check dated August 28, 1935. All efforts on the part of Agent McDowell to keep the policy in benefit were, of course, abandoned.

‘On the morning of September 3, 1935, the beneficiary and defendant in this cause called at the District Office of the Insurance Company and procured from the cashier a form application to the Metropolitan Life Insurance Company for the reinstatement of the insurance policy which, as previously indicated, had lapsed. Later on the same day Agent McDowell made a regular call at the Jankowski home for the purpose of collecting premiums on other policies and at the request of Mr. Jankowski acted as a witness to the execution of the application for reinstatement by the insured. Said application for reinstatement contains, among other things, the following representations:

“My present occupation is that of a press operator. I am employed by the National Stamping Company of Detroit. I am now in sound health. I have not, since the date of issue of Policy No. 0645125 S. C., had any illness or injury or consulted any physicians.'

‘In writing, over her signature, the insured stated as follows:

“I hereby certify that the foregoing statements and answers are correct and wholly true and have been made by me to induce the Metropolitan Life Insurance Company to reinstate the above policy, and I agree that if said Company shall grant such reinstatement the same shall be deemed to be based exclusively upon the representations contained in this request and upon the express condition that if the foregoing statements be in any respect untrue said Company shall, for a...