Metropolitan Life Ins. Co. v. Howle

• Decision Date: 23 June 1903
• Citation: 68 N.E. 4,68 Ohio St. 614
• Parties: METROPOLITAN LIFE INS. CO. v. HOWLE.
• Court: Ohio Supreme Court

68 N.E. 4

68 Ohio St. 614

METROPOLITAN LIFE INS. CO. v. HOWLE.

Supreme Court of Ohio.

June 23, 1903

Error to Circuit Court, Cuyahoga County.

Action by one Howle against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.

This same cause was here once before, and is reported in Life Ins Co. v. Howle, 62 Ohio St. 204, 56 N.E. 908; the cause now here being the one brought upon the two small policies, one for $126, dated September 25, 1893, and the other for $500 dated November 12, 1894. The policies were on the life of Sarah Howle, and ran in favor of her husband, said Henry Howle. She died September 5, 1895.

The petition is in the usual form, and avers that he and she duly performed all of the conditions of said policies on their part to be performed, made proofs of death, and demanded payment, which was refused; followed by a prayer for judgment.

The amended answer is as follows:

‘ First ground of defense: Now comes the Metropolitan Life Insurance Company, defendant in this action, and, for its first ground of defense, admits its corporate existence under the laws of the state of New York, the execution of two policies of insurance upon the life of Sarah Howle, in the sums and for the considerations stated in the petition in this case, the payment of the premiums, the death of said life; and denies each and every other allegation in said petition.

‘ Second ground of defense: For its second ground of defense this defendant says said policies were issued in consideration of the warranties, answers, statements, and agreements in the applications therefor by said deceased made to defendant on September 9, 1893, and October 24 1894, respectively, copies of which are hereto attached, marked respectively ‘ Exhibit C’ and ‘ Exhibit D,’ and made part hereof, in which said deceased declared and warranted that the representations and answers therein made were strictly correct and wholly true, that any untrue answer would render the policy issued thereunder null and void, and that neither of said contracts of insurance should bind the defendant, unless, upon their dates and delivery, she was in sound health.

‘ And defendant says the following answers, warranties, and statements in the application, ‘ Exhibit C,’ were willfully false and fraudulently made, to wit: That the deceased never had pneumonia, or disease of the heart or kidneys; never been under any treatment in any dispensary, hospital, or asylum; and was on the said September 9, 1893, in sound health.

‘ And that the following answers, warranties, and statements in said application, ‘ Exhibit D,’ were willfully false and fraudulently made, to wit: That the deceased on said October 24, 1894, was not insured in any other company except this defendant's; never had pneumonia, or disease of the heart or kidneys; never had been under treatment in any dispensary, hospital, or asylum; never been seriously ill; was on said day in sound health; and that no application for insurance on her life had been, prior to said day, rejected or declined by any other company.

‘ And defendant says that prior to said respective days in September, 1893, and October, 1894, said insured had pneumonia and disease of the heart and kidneys; had a miscarriage; had been under treatment in the Wooster University Dispensary or Hospital at Cleveland, Ohio; had been seriously ill; and an application for insurance on her life had been rejected or declined by an insurance company. And that on neither of said days, nor on the respective days and dates of delivery of said policies, was said insured in sound health. All of which was well known to plaintiff and said insured.

‘ Defendant further says that said answers in said application were material, and induced it to issue said policies; that, but for such answers and warranties, neither of said policies would have been issued; and that the defendant's agent had no knowledge of the falsity or fraud of said answers or any of them.

‘ Wherefore this defendant prays to be hence dismissed with its costs.’

The reply is a general denial of the answer.

Upon trial to a jury there was a verdict for the plaintiff for the full amount claimed on both policies. A motion for a new trial was overruled, and judgment entered on the verdict. Proper exceptions were taken and saved throughout. The circuit court affirmed the judgment, and thereupon the insurance company came to this court, seeking to reverse the judgments of the courts below. The grounds of error will be stated in the opinion.

Where a condition in a life policy is to the effect that the company assumes no obligation, unless the insured is, at the date of the policy, alive and in good health, and there is an issue as to whether he was at the time in good health, the defendant is entitled to an instruction unconditionally to find for the company if the insured was not in sound health at the date of the policy.

Syllabus by the Court

1. Where, under section 3623, Rev. St. 1892, a full and complete copy of the application for insurance has not been returned with the policy, the insurance company, while so in default, is estopped from denying the truth of such application, but, to make such estoppel available, the facts constituting the estoppel must be pleaded by the plaintiff.

2. It is not competent to prove by a physician the communications made to him by his patient in that relation, but such physician may testify as to facts which are within his knowledge independent of such communications. He may testify as to the condition and state of health of his patient, as well as the treatment by him prescribed for his patient.

3. Where the state of health of a person is in question, and one side introduces evidence showing that such person could and did, about the time in question, walk about the house and on the streets and in other places, it is competent for the other side to prove that about the same time the person in question walked but little.

4. Where a policy of life insurance has a condition to the effect that the company assumes no obligation unless the insured is at the date of the policy alive and in sound health, and there is an issue as to whether at that time the insured was in sound health, the insurance company is entitled, upon the trial, to have the jury instructed unconditionally to find for the company, in case they find that the insured was not in sound health at the date of the policy.

C. L. Holtze, for plaintiff in error.

Hart & Canfield, and W. S. Kerruish, for defendant in error.

BURKET, C. J. (after stating the facts).

Upon the trial the defendant insurance company had a witness upon the stand with one of the applications for insurance in his hand, and was proceeding to prove that the answers to the...