Moore v. Mutual Reserve Fund Life Ass'n

• Decision Date: 23 June 1903
• Citation: 95 N.W. 573,133 Mich. 526
• Parties: MOORE et al. v. MUTUAL RESERVE FUND LIFE ASS'N.
• Court: Michigan Supreme Court

95 N.W. 573

133 Mich. 526

MOORE et al. v. MUTUAL RESERVE FUND LIFE ASS'N.

Supreme Court of Michigan

June 23, 1903

Error to Circuit Court, Wayne County; Robert E. Frazer, Judge.

Action by James F. Moore and others against Eva Winans, in which the Mutual Reserve Fund Life Association was garnished. Consolidated with other causes. Judgment in favor of the association, and plaintiffs bring error. Affirmed.

Elliott G. Stevenson, Leo M. Butzel, and John D Conely, for appellants.

Dickinson Warren & Warren (Charles B. Warren, of counsel), for appellees.

HOOKER C.J.

William N. Winans, the husband of Eva Winans, applied to the defendant on October 15, 1895, for a policy of insurance for $10,000 upon his life, payable to his wife. The application contained the usual questions, to which he made answer, and the provision that these answers should be warranties, and avoid the policy if they were not in all respects true. There was some delay in the acceptance of this risk by the company, but the policy was finally issued upon January 15, 1896, and sent to its agent, with direction to deliver, upon the execution by the applicant of a certificate of good health, which, when executed, contained a reaffirmance that his statements in the application were true and should constitute warranties. The policy was delivered on January 18, 1896. Winans was accidentally drowned on August 24, 1896, and on August 25, 1896, a writ of garnishment was sued out in behalf of Moore & Co. against the defendant insurance company. A disclosure in writing was filed October 9, 1896, denying that at the time of service it was in any manner indebted to Eva Winans. It also stated that it had been previously served with similar process at the suit of two other alleged creditors of Eva Winans. On October 19 1896, interrogatories were filed and served, and, October 26, the time for answering was extended by stipulation to November 10, 1896, when the answers were filed, admitting the issuance of a policy to Winans for $10,000, payable to Eva Winans, that the last premium was paid August 1, 1896, that it had received papers purporting to be proofs of loss, and that it had no knowledge whether Winans was dead or not. Plaintiff afterwards demanded a trial of the statutory issue in garnishment. The date of this is not stated. On July 1, 1897, a motion was made and leave granted to file further answers, which set up in detail the alleged breaches of warranty, upon which defendant relied at the subsequent trial, in which it was stated that at the time when the former answers were made it was not in a position to set out the breaches of warranty on which it relied. The cause was consolidated with three others of like character, and upon the trial a verdict for the defendant was rendered, by direction of the court, upon the ground that there were 'warranties in this application that have been shown to be false, that were never brought to the knowledge of the company, and they never directly or by inference waived. Such is the warranty that he never had been treated by any other physician. Such is the warranty in regard to his temperate habits. Such is the warranty in regard to his insurance in other companies.' In his charge the learned circuit judge said further: 'It is also claimed that at the time the proofs of loss were furnished these facts were known; that is, that the giving of the proofs of loss, handing out this blank, allowing the party to make his proofs, is a waiver of any defenses that they now have or might have had at the time. I do not find under the evidence, as I look at it, that there was any such knowledge at the time these proofs of loss were furnished. Neither do I find that, under the law, the mere giving out of this blank is a waiver of anything. Another proposition is that the pleadings in this case prevented the defendant from setting up this defense. The pleadings recited the answers to the interrogatories. I believe now, as I did at the time I admitted those amended interrogatories, that they are part of the pleadings in this case. I see no evidence that they were not made the issue as soon as the company was informed of them.' The plaintiff has brought error.

Upon the trial the court held that the burden of proof was upon the defendant to show the breach of warranties contained in the contract, and it was made to appear that the application contained the following: 'It is hereby agreed that the answers and statements in this application (parts 1 and 2) whether written by the applicant or not, are warranted to be full, complete, and true, and that this agreement and the constitution or by-laws of the association, with the amendments thereto, together with this application, are hereby made part of any policy that may be issued hereon. That if any of the answers or statements made are not full, complete, and true, or if any condition or agreement shall not be fulfilled as required herein or by such policy, then the policy issued hereon shall be null and void, and all money paid thereon shall be forfeited to said association. That the person soliciting or taking this application, and also the medical examiner, shall be the agents of the applicant as to all statements and answers in this application, and no statements or answers made or received by any person, or to the association, shall be binding on the association, unless such statements or answers be reduced to writing and contained in this application.' It also contained the following questions and answers: '9. Has the applicant now any insurance on his life? If so, where, when taken, for what amounts, and what kind of policies? Company or association. AEtna. New York Life. National. Union. A. O. U. W. Equitable of Iowa. Date issued. 1893, 1893, 1893, 1894. Amount. $2,000. $10,000. $3,000. $2,000. $20,000. 10. Has any proposal to insure the life of the applicant ever been postponed or declined? If so, by what company or association, and for what reason? No. 11. Has any proposal or application to insure the life of the applicant or for membership ever been made to any company, association or agent upon which a policy or certificate of membership has not been received by you in person for the full amount and kind, and at the rate applied for? No. 12. Have you any insurance on your life or membership in any company or association not mentioned in answer to above question No. 9? No. 13. Has any physician given an unfavorable opinion upon the life of the applicant with reference to life insurance or otherwise? If so, state particulars. No. 14. Has the applicant ever had any illness, local disease, injury, mental or nervous disease or infirmity? If yes, state nature, date, duration and severity of attack. Never sick in bed a day in my life. 15. A. How long since you consulted, or were attended by a physician? Give date. B. State name and address of such physician. C. For what disease or ailment? D. Give name and address of each physician who has prescribed for or attended you within the past five years, and for what disease and ailments, and date. E. Have you had any illness, disease or medical attendance not stated above? A. None. B. Name, none. Address. _____. C. None. D. Name, none. Address. _____. E. No. 16. Have you used externally or internally...