Moore v. United Ben. Life Ins. Co., 11091

• Decision Date: 22 July 1960
• Docket Number: No. 11091,11091
• Citation: 145 W.Va. 549,115 S.E.2d 311
• Court: West Virginia Supreme Court
• Parties: Franklin Blain MOORE and Ida Madeline Moore, v. UNITED BENEFIT LIFE INSURANCE COMPANY.

Page 311

115 S.E.2d 311

145 W.Va. 549

Franklin Blain MOORE and Ida Madeline Moore, v. UNITED BENEFIT LIFE INSURANCE COMPANY.

No. 11091.

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1960.

Decided July 22, 1960.

Syllabus by the Court

1. When a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it.

2. 'If the facts regarding the risk are correctly stated to the agent of an insurance company, but erroneously inserted by him in the application, the company is chargeable with his error or mistake, whether the application is attached to the policy as a part thereof or not.' Syllabus, Bays v. Farmers' Mutual Fire Association of West Virginia, 114 W.Va. 164 .

McCluer, Davis, McDougle, Stealey & Morris, John R. Morris, Parkersburg, for plaintiff in error.

G. F. Hedges, Jr., J. M. Harper, Ryan & Scott, Spencer, for defendants in error.

HAYMOND, Judge.

In this action of assumpsit instituted in the Circuit Court of Calhoun County in 1958, the plaintiffs, Franklin Blain Moore and Ida Madeline Moore, seek to recover from the defendant, United Benefit Life Insurance Company, a corporation, the amount of a policy of insurance issued by the defendant upon the life of Nancy Lynne Moore, infant daughter of the plaintiffs, in which the plaintiffs are the named beneficiaries. Upon the trial of the case the jury returned a verdict in the amount of $3,350.00. By final order entered February 24, 1959, the circuit court overruled the motion of the defendant to set aside the verdict and grant it a new trial and entered judgment upon the verdict for the amount of the verdict and costs. To that judgment this Court granted this writ of error and supersedeas upon the application of the defendant.

To the declaration, which followed the statutory form and with which was exhibited a copy of the policy of insurance, the defendant filed its specifications of defense in which it charged that the plaintiff Franklin Blain Moore had made false answers to certain questions set forth in the application which rendered the policy of insurance void, its special plea of fraud in the procurement of the contract of insurance, and its plea of the general issue. The plaintiffs filed their special reply to the specifications of defense and their special reply to the special plea of fraud, and the defendant filed its rejoinders and its demurrers to the special replies of the plaintiffs. The demurrers to the special replies were overruled by the court and issue was joined on the foregoing pleadings.

The plaintiff Franklin Blain Moore who was only slightly acquainted with Haeman Gainer, a representative of an insurance agency which acted as an agent for the defendant, was solicited by Gainer to purchase insurance upon the life of Nancy Lynne Moore, the infant one year old daughter of the plaintiffs, who was born on October 16, 1956; and on the evening of October 19, 1957, Gainer went to the home of the plaintiffs for the purpose of obtaining their acceptance of a policy of insurance. At the time of Gainer's visit, which lasted approximately an hour, the plaintiffs, their infant daughter and Gainer were the only persons present when the written application, on the form provided by Gainer, was completed and signed by the plaintiff Franklin Blain Moore. After the application was completed by the insertion of the answers to the various questions set forth in the application and the signature of the plaintiff Franklin Blain Moore, it was delivered to Gainer and the policy of insurance, upon which the plaintiffs seek to recover in this action, was issued by the defendant upon the life of Nancy Lynne Moore. Approximately a month after the application was signed and delivered to Gainer, the policy of insurance was delivered by Gainer to the plaintiff Ida Madeline Moore at the home of the plaintiffs and the policy, with a photographic copy of the application attached, was delivered by her to her husband who placed it in a chest in his home where it remained without having been read by the plaintiffs until after the death of Nancy Lynne Moore which occurred on December 16, 1957. At the time the application was signed and delivered to Gainer the plaintiff Franklin Blain Moore paid him the annual premium of $31.14 which the defendant, after it refused to pay the claim of the plaintiffs for the face amount of the policy, has offered to refund to the plaintiffs who have declined to accept it. The foregoing facts are undisputed.

During the time the application was being prepared Gainer, who set on a couch a few feet from the plaintiff Franklin Blain Moore, read to him certain questions and requested answers to them from the plaintiffs and answers were inserted in the application by Gainer. To a number of the questions the answers inserted in the application by Gainer were correct, but other answers inserted in the application to certain questions were not correct or were not complete. The evidence on that point is conflicting. The plaintiff Franklin Blain Moore testified that to such questions as were propounded to the plaintiffs by Gainer the answers which they gave were true and correct; that Gainer did not insert in the application the answers actually made by the plaintiffs but instead inserted different and incorrect answers to some of the questions; that he did not ask the plaintiffs all the questions contained in the application, or obtain answers to all of them; that he did not ask or receive any answer to question 15; that they did not read the application or the policy, except to see that their names and the name of their child were correct, until after the death of their infant daughter and did not know until then that the answers inserted by Gainer were incorrect and different from those given to him by the plaintiffs; and that the plaintiff Franklin Blain Moore did not read the application because he assumed that Gainer had correctly recorded the answers actually given by the plaintiffs. The testimony of the plaintiff Ida Madeline Moore was substantially similar to that of her husband. On the contrary Gainer testified that he asked the plaintiffs all the questions contained in the application; that they made answers to all of them; that he correctly inserted in the application the answers made to him by the plaintiffs; that the plaintiff Franklin Blain Moore had an opportunity to read the application before he signed it; and that Gainer did nothing to induce the plaintiff Franklin Blain Moore not to read the application before he signed it.

After the plaintiffs notified the defendant of their claim for payment of the insurance the defendant made an investigation concerning the health of the insured and, having learned that answers to questions 6(d), 7, 8(a) and 8(b) were false, denied liability under the policy of insurance. The plaintiffs then instituted this action.

The foregoing questions and the answers to them contained in the signed application are: '6(d) Is the Child dumb, deaf or blind, or is there any other infirmity or physical deformity? No; 7. Name below all causes for which Child has consulted a physician in the last ten years: None; 8(a) Has the Child now, or has Child even had, any other disease or injury? None'; and '8(b) Is the Child now in good health? Yes.' The application also contained this question and this answer to it: '15. Do you hereby declare that all statements and answers herein are full, complete and true, whether written by your own hand or not, and agree that they are to be considered the basis of any insurance issued hereon, do you further agree that there shall be no liability hereunder until a policy shall be issued to the Child and delivered to you while said Child is in good health, and free from injury, and the first premium thereon actually paid in cash during the Child's lifetime, and that your acceptance of any policy issued on this application, whether or not upon the form applied for herein shall constitute a ratification by you of any change of the form of the policy or correction in or addition to the application, made by the Company, photographic copy of which shall constitute sufficient notice to you of the change made? Yes.'

The evidence is undisputed that the child had been hospitalized and treated by Dr. Arch M. Jones at Parkersburg, West Virginia, during the period June 14 to June 20, 1957, for acute tonsilitis, acute bronchitis and hyperchronic anemia; that during this period the child was given two blood transfusions; that none of this information was contained in the answers in the application; that on December 16, 1957, less than two months after the policy was issued, the child died; and that the cause of death, as set forth in the death certificate, was bronchitis.

As heretofore indicated, on the factual question as to what information was actually given to the solicitor by the plaintiffs and whether such information was correctly inserted by him in the answers in the application, there is conflict in the testimony. On this factual question, however, the jury, by its verdict, found that the plaintiffs had made true answers to the questions and that false or incorrect answers were inserted in the application by the agent of the defendant without the knowledge of the plaintiffs.

The principal errors on which the defendant relies for reversal of the judgment of the circuit court are the action of the court (1) in refusing to give Instruction 1, which would have directed the jury to return a verdict for the defendant, and Instructions 2, 2c and 2e offered by the defendant; and (2) in refusing to set aside the verdict because it is against the weight of the evidence.

It is clear that Gainer, who solicited the purchase of the insurance by the plaintiff Franklin Blain Moore, was...