Mohr v. Prudential Ins. Co. of Am.

• Decision Date: 13 July 1910
• Citation: 78 A. 554,32 R.I. 177
• Parties: MOHR v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Rhode Island Supreme Court

78 A. 554

32 R.I. 177

MOHR

v. PRUDENTIAL INS. CO. OF AMERICA.

Supreme Court of Rhode Island.

July 13, 1910, and Jan. 16, 1911.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Elizabeth F. Mohr against the Prudential Insurance Company of America. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled, with directions to enter judgment on the verdict.

Page & Cushing, for plaintiff.

Edward D. Duffield, Comstock & Canning, and Jeremiah E. O'Connell, for defendant.

PER CURIAM. The defendant's exceptions are overruled, and case is remitted to the superior court with directions to enter judgment on the verdict.

Opinion will be filed later.

SWEETLAND, J. This is an action of the case in assumpsit brought by the plaintiff as the beneficiary named in two policies of insurance issued by the defendant upon the life of one Joseph P. Hennon. One of said policies is for the sum of $500, and is dated January 28, 1907; the other is for the sum of $5,000, and is dated February 7, 1907. By its term each of said policies is payable to "the insured if living twenty years after the date hereof, or, in case of the prior death of the insured, to Elizabeth F. Mohr, beneficiary, aunt of the insured, if the beneficiary survive the insured, otherwise to the executors, administrators or assigns of the insured." Each of said policies contains the following clause: "This policy shall be incontestable after one year from its date if all due premiums shall have been paid." The application for each policy was signed by said Joseph P. Hennon, and contained the provision that "said policy shall not take effect until the same shall be issued and delivered by the said company and the first premium paid thereon in full, while my health is in the same condition as described in this application." In each of said applications the said Joseph P. Hennon warranted that he was in good health. The insured died on June 3, 1908. The insurance company refused to pay the amount of said policies to this plaintiff, the beneficiary named therein. The case was tried in the superior court before Mr. Justice Brown and a jury, and verdict was rendered for the plaintiff for the full amount of both policies. A motion for a new trial was denied in the superior court. The case is here upon exceptions to certain rulings made at the trial in the superior court by the justice presiding, and to the refusal of said justice to grant a new trial. The defendant excepted to the ruling of the justice presiding permitting the plaintiff to introduce in evidence the two policies of Insurance in question, without first offering testimony that the insured was in as good health at the time of the delivery of the policies as he was at the time he made his application for said policies.

This exception raises the question as to the construction which shall be given to the agreement of the insured contained in the application for the policies of insurance, signed by him, and made a condition of the policies, viz., that the policy should not take effect until the same was issued and delivered by the company and the first premium thereon paid in full while the insured was in good health as described in the application. Similar provisions in insurance policies have frequently been before the courts for construction, and different courts have reached somewhat different conclusions as to the effect of such provisions. In Connecticut Indemnity Ass'n v. Grogan (Ky.) 52 S. W. 959, the court said: "An agent who has authority to take applications for insurance and power to collect the premiums and remit the same to the company, as was done in this case, clearly has the power to determine as to whether the insured is entitled to receive the policy, and to waive any question as to sound health." And see, also, Northwestern Life Ass'n v. Findley, 29 Tex. Civ. App. 494, 68 S. W. 695; Quinn v. Metropolitan Life Ins. Co., 10 App. Div. 483, 41 N. Y. Supp. 1060.

In Grier v. Life Ins. Co., 132 N. C. 542, 44 S. E. 28, it was held: "The provision in the application that the contract shall not take effect until the first premium shall have been paid, during the applicant's continuance in good health, is only a provisional agreement authorizing the company to withhold the delivery of the policy until such payment in good health; but when the company actually delivers the policy, then it is estopped, in the absence always of fraud, to assert that its solemn contract is void either on account of nonpayment of premium or of ill health, which stipulations were asserted in the application as conditions to excuse it from such delivery, and are not grounds to invalidate the policy after it has been delivered."

In our opinion a sounder construction is that the existence of good health in the insured at the time of the delivery of the policy is a condition precedent to the obligation of the insurance company. And that at a trial of an action upon the policy the insurance company can insist that the good health of the insured, at the time of the receipt of the first premium and the delivery of the policy, shall appear by a preponderance of the testimony before its liability attaches, unless this condition precedent has been clearly waived by the company or its right to raise this defense is restricted by some other provision of the policy. Gallant v. Metropolitan Life Ins. Co., 167 Mass. 79, 44 N. E. 1073; Packard v. Ins. Co., 72 N. H. 1, 54 Atl. 287; Langstaff v. Ins. Co., 69 N. J. Law, 54, 54 Atl. 518; Barker v. Metropolitan Life Ins. Co., 188 Mass. 542, 74 N. B. 945.

It was not error, however, to permit the plaintiff to introduce the policies in evidence without first requiring her to present specific testimony of the good health of the insured at the time of their delivery. To regulate the order of proof is largely within the discretion of the court Moreover, testimony of the receipt of the first premium and of the delivery of the policy by the defendant to the insured raises the presumption that the insured was in good health at the time of such delivery. This presumption may be rebutted by the defendant. The burden remains upon the plaintiff to establish this fact made a condition of the policy. The prima facie case in favor of the plaintiff made by this presumption does not shift the burden to the defendant, but, as was held by this court in Sweeney v. Met. Life Ins. Co., 19 R. I. 171, 36 Atl. 9, 38 L. R. A. 297, 61 Am. St. Rep. 751, by this presumption the burden is lifted.

The defendant excepted to the ruling of the justice presiding excluding the testimony of certain physicians as to the condition of health of the insured at about the time of the delivery of the policies to him. The defendant sought to introduce this testimony for the purpose of showing that the health of the insured was not good at the time of said delivery. The defendant also excepted to the refusal of the justice presiding, at the conclusion of the testimony, to direct a verdict in favor of defendant on the ground that the testimony did not show the insured to have been in good health at the time of delivery of the...