Mut. Life Ins. Co. of N.Y. v. Buford

• Decision Date: 24 October 1916
• Docket Number: Case Number: 6761
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. BUFORD et al.
• Court: Oklahoma Supreme Court

1916 OK 909

160 P. 928

61 Okla. 158

MUTUAL LIFE INS. CO. OF NEW YORK v. BUFORD et al.

Case Number: 6761

Supreme Court of Oklahoma

Decided: October 24, 1916

Syllabus

¶0 1. Appeal and Error -- Motions -- Orders -- Entry in Journal--Necessity.

The requirements of section 5317, Revised Laws of 1910, as to entering all orders upon the journal of the court is directory, and it is not essential to the validity of such orders that the same be so entered, and that the case-made show affirmatively such recording.

2. Appeal and Error--Record--Defects--Effect.

That the case-made does not affirmatively show that orders extending time to prepare and present case-made are entered upon the journal of the court, is not sufficient ground for dismissal of appeal.

3. Insurance--Actions on Policies--Pleading--Condition.

Where a policy of life insurance contains a provision that after two years from date of its issue said policy is incontestable, such provision is not a waiver, but a condition, and where such condition is not specifically pleaded in the petition, but a copy of such policy of insurance is attached as an exhibit to and made a part of said petition, such condition as to incontestability of such policy of insurance is sufficiently pleaded.

4. Insurance--Avoidance--Breach of Warranty.

Where the only defense interposed to an action on a life insurance policy, containing a condition of incontestability after two years from date of policy, is a breach of the warranties in the application for the issuance of the policy, such defense pleaded more than two years after the date of issue of the policy does not constitute a valid defense.

5. Insurance -- Cancellation -- Right of Insurer.

After the issue of a policy of insurance, the insurer cannot cancel such policy on the ground of breaches of the warranties in the application for insurance, except with the consent of the insured and beneficiary named in the policy, who has vested interest in the policy, except in the manner provided in the policy, unless proper legal action is taken prior to the time named in the policy in which the same became incontestable.

6. Same.

An insurer cannot cancel a policy of life insurance against the objections of the insured by declaring the policy canceled upon the ground that the insured falsely represented his family history, occupation, place of residence, and use of intoxicating liquors, and tendering back to the insured the premiums paid by him; there being no provision in the policy authorizing the insurer to thus cancel the policy.

7. Insurance -- Actions -- Direction of Verdict.

Where the petition states, and the evidence shows, a good cause of action upon a policy of life insurance, containing a condition of nonforfeiture after two years from the date issue of the policy, and the only defense pleaded is a breach of the warranties contained in the application for the insurance, pleaded more than two years after the policy became incontestable, such breach constitutes no defense, and the court should direct a verdict for the plaintiff.

Error from District Court, Washington County; R. H. Hudson, Judge.

Action by Caprice Buford and others against the Mutual Life Insurance Company of New York. Judgment for plaintiffs, and defendant brings error. Affirmed.

Grinstead & Scott, for plaintiff in error.

Locke & Locke and Stephen C. Treadwell, for defendants in error.

COLLIER, C.

¶1 This is an action brought by defendants in error, beneficiaries named in a policy of insurance issued by the plaintiff in error, on May 17, 1906, on the life of their father, Wallace Buford, to recover on said policy. Hereinafter the parties will be designated as they were in the trial court.

¶2 It is admitted by the defendant that the policy was issued as stated in the petition, and that the annual premium due on said policy was $ 118.08; that two annual premiums were paid by the insured on the policy, which payments paid all premiums due on said policy up to and including May 17, 1908, and thirty days thereafter, as provided by the terms of said policy, and for more than two years from date of issue of said policy.

¶3 The uncontradicted evidence is that on the 30th day of October, 1907, while the policy was in good standing with premiums paid to May 17, 1908, and with 30 days' grace thereafter in which to make additional payments, defendant undertook to cancel said policy for the reason, as defendant claims in its answer, that the said Wallace Buford, in his said application for insurance, made statements, as to his habits as to the use of wines, fermented and malted liquors, that were not true, and defendant so notified said Buford and offered to return to him, with interest, the premiums which he paid for said insurance, which offer the said Buford first agreed to accept and finally declined so to do, and thereafter offered to pay the premium for the succeeding year, which the company refused to accept.

¶4 On the 8th day of November, 1911, the insured departed this life, and notice of such death was furnished the defendant and demand for the payment of said policy made, which payment was refused, and thereupon this action was instituted.

¶5 The petition is in the usual form for an action on a life insurance policy, and attached thereto and made a part thereof is a copy of said policy of insurance. In said policy of insurance, a copy of which is attached to said petition, there is contained a provision that after two years from the date of issue of said policy, the same will be incontestable, if the premiums have been duly paid thereon. There is no specific allegation in the petition proper as to said condition of nonforfeiture. The only defense interposed by the said answer of the defendant is that there were misrepresentations by the insured in his application for said insurance in regard to his family history, occupation, residence, and excessive use of alcoholic liquors. The defendant concedes that there is no defense to this action on account of any failure to pay premiums thereon.

¶6 In the trial of the cause, no evidence whatever was offered tending to show any breach of warranties in the application for insurance as to the use of intoxicating liquors by the insured; while the preponderance of the evidence was that there had been a breach of the warranties of the insured as to his habits, residence, occupation, and family history, but none of these breaches of warranties were legally set up within two years from the date of issuance of policy, and therefore the defendant was estopped from setting them up at the trial, the policy long before the trial having become incontestable.

¶7 Answer was filed in 1913, years after the policy had become incontestable, which was the first attempt of the defendant to legally avoid the policy of insurance on the grounds of misrepresentation of warranties contained in the said application of insurance.

¶8 The death of the insured was admitted by the pleadings, together with the fact that defendant had refused to accept the premiums offered by the insured during his lifetime, other than the two first annual premiums paid; and that the defendant upon notice of the death of the insured had refused, upon demand, to pay the amount of insurance stipulated to be paid by the policy.

¶9 Upon the conclusion of the evidence of the plaintiffs, the defendant demurred to the evidence, which was overruled, and duly excepted to; thereupon the defendant moved for an instructed verdict, which was refused and excepted to. Upon the conclusion of all of the evidence, plaintiffs moved for an instructed verdict, which was given by the court, and verdict rendered by the jury for the plaintiffs in the sum of $ 2,925.18, the face of the policy herein sued on and interest thereon, less $ 472.32, the amount of the unpaid premiums and interest thereon.

¶10 Within the statutory time defendant moved for a new trial, which was overruled, and judgment entered on the verdict rendered, to which defendant duly excepted. To reverse the judgment rendered, this appeal is prosecuted.

¶11 The defendant in error moves to dismiss this appeal on the following grounds: (1) That the case-made herein was not served upon the defendant in error within the time provided by law and the extensions allowed by the trial court; (2) that the order of the trial court purporting to extend the time for making and serving a case-made does not show to have been extended upon the journal of the court.

¶12 In support of the motion, the following cases are cited: Springfield F. & M. Co. v. Gish et al., 23 Okla. 824, 102 P. 708; Fife et al. v. Cornelous et al., 35 Okla. 402, 124 P. 957; Mobley v. C., R. I. & P. R. Co., 44 Okla. 788, 145 P. 321; In re Garland, 52 Okla. 585, 153 P. 153. We are of the opinion that the record discloses that the case-made was served upon the defendant within the time provided by extension of time for presenting the same.

¶13 In the case of St. L. & S. F. R. Co. v. W. N. Taliaferro, 58 Okla. 585. 160 P. 610, in the third paragraph of the syllabus, it is said:

"Section 5317, requiring orders made out of court to be forthwith entered on the journal of the court by the clerk, is directory, and compliance with said requirement that such orders be so entered is not essential to the validity of such orders, nor is it necessary that the case-made show affirmatively the recording thereof."

¶14 This holding is contrary to the above authorities cited by defendant, and in said case of St. L. & S. F. R. Co. v. Taliaferro, the said cases are expressly overruled. We are of the opinion that the motion to dismiss is without merit, and must be denied.

¶15 In considering the merits of the cause we are confronted by the contention on the part of the defendant that if the condition of the policy as to non-forfeiture was available as an answer to the averments of the misrepresentations contained in the application for insurance, that said nonforfeiture was a waiver and was...