Mut. Life Ins. Co. v. Boucher

• Decision Date: 12 July 1921
• Docket Number: Case Number: 10240
• Citation: 83 Okla. 42,1921 OK 287,200 P. 534
• Parties: MUTUAL LIFE INS. CO. v. BOUCHER. et al.
• Court: Oklahoma Supreme Court

1921 OK 287

200 P. 534

83 Okla. 42

MUTUAL LIFE INS. CO. v. BOUCHER. et al.

Case Number: 10240

Supreme Court of Oklahoma

Decided: July 12, 1921

Syllabus

¶0 1. Insurance--Life or Accident Policy--Falsity of Statements in Application--Question for Jury. Generally, the question of the falsity of the Statements contained in a life or accident insurance policy, and the intent of the applicant in making them, are for the jury.

2. Same -- Representations or Warranties --Effect of Statute. Under section 3467, Rev. Laws 1910, statements made by the insured in his application must be construed as representations and not warranties, and this requirement of the statute cannot be evaded by endorsing such statements upon the policy, which also contains a provision to the effect that the policy is issued in consideration of such statements, each of which the insured by accepting the policy warrants to be full complete, and true.

3. Trial--Effect of General Finding. Where a case is tried to the court without a jury, and the court makes no special findings of fact, a general finding in favor of plaintiff includes a finding upon every fact necessary to support the judgment.

4. Insurance--Falsity of Statements in Application--Question for Jury or Court. The question as to whether certain answers given to questions in an application for insurance are false, and as to the intent of the applicant in making them, is a question of fact for the jury, or for the court sitting as a jury.

5. Same-Action on Life Policy--Recovery--Affirmance. Record examined, and ordered that the judgment of the trial court be affirmed.

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

W. W. Pryor and C. B. Rockwood, for defendants in error.

JOHNSON, J.

¶1 By their petition, filed November 18, 1914, the defendants in error, herein after called the plaintiffs, sought to recover from the plaintiff in error herein after called the defendant, upon a policy of insurance issued by the defendant upon the life of their father, Columbus J. Myers, in the sum of $ 3,500 under date or September 14, 1913, and payable to them as the originally designated beneficiaries thereof. Upon the second trial of the cause, had October 22-25, 1917, they recovered a judgment for $ 4,541, April 1, 1918; the jury having been discharged and the cause submmitted to the court by agreement and taken under advisement. The petition was in the usual form, and alleged the issuance of the policy, and the death of the insured on December 14, 1912, while the policy was in force. A copy of the policy was attached to the petition as exhibit "A" thereof. The defendant's amended answer, filed January 19, 1915, upon which the case was tried, tendered a return of the premium paid, and set up in defense to the action upon the policy certain statements made in the application therefor, and alleged to be untrue. A copy of the application for the insurance was attached to the answer as an exhibit. Paragraphs 5-12 of the answer, setting up said defense, read as follows:

"5. The defendant was induced to issue said policy by reason of an application partly written and partly printed, made therefor by the said Columbus J. Myers on behalf and by the authority of the plaintiffs, and said policy of insurance, and particularly said term of insurance endorsement, was issued by the defendants in pursuance of, upon the faith of, and in consideration of, said application, and of each and all of the agreements, conditions, statements, answers and representations therein contained.

"6. Said application is composed of two parts on the same sheet of paper, the first consisting of certain statements, and answers and agreements made and subscribed by the said Columbus J. Myers, in the presence of the defendant's soliciting agent, and the second consisting of statements made and subscribed by the said Columbus J. Myers in the presence of the medical examiner of the defendant. A copy of said application is attached to this answer, and marked 'Exhibit A' and made a part thereof.

"7. At the commencement of the first part of said application are statements and agreements substantially as follows:

"'This application is made to the Mutual Life Insurance Company of New York. All the following statements and answers, and all those that I make to the company's medical examiner, in continuation of this application are true, and are offered to the company as an inducement to issue the proposed policy,' etc.

"8. Among the statements contained in the first portion of said application and above the signature of the said Columbus J. Myers thereto, are the following:

"'(22) I have never made an application nor submitted to an examination for life insurance upon which a policy has not been issued on the plan and premium rate originally applied for except to the following companies or associations; none.

"'(23) No negotiations for other insurance are now pending, or contemplated, except; none.'

"9. Among the statements and answers to the medical examiner made by the said Columbus J. Myers and contained in the second part of said application, are the following:

"'What illness, diseases or injuries have you had since childhood? (The examiner should satisfy himself that the applicant gives full and careful answers to this question.)

Name of Disease, etc.--Pneumonia, Typhoid.

Number of Attacks--Three, Two.

Date of each--25 years ago, 1887; 1876-1896.

Duration--About 10 days; 3 Weeks each.

Severity--Mild; Mild.

Results--Good; Good.

Date of Com. Rec'y.--25-30 yrs. ago.; In four wks. from date of attack.

"'(5) Have you stated in answer to question 4 all such diseases, illnesses or injuries? Yes.

"'(6) State every physician who has prescribed for you or whom you have consulted in the past five years. None.

Name of physician--None.

Address.

When consulted.

Nature of Complaint. Give full details above under Q. 4.

"'(7) (a) Are you now in good health? Yes. (b) if not, what is the impairment? None.

"'(11) Have you any bodily deformity? No.

"'(12) (a) Do you use wine, spirits or malt liquors? No. (b) if so what kind have you used during the past year and how much in any one day at the most? None. (c) What has been your daily average in past year? None. (d) Have you been intoxicated during the past five years? Yes, twice. (e) Have you ever taken treatment for alcoholic or drug habit? No. (f) If a total abstainer, how long have you been so? Several years ago.'

¶2 "Underneath said questions and answers and above the signature of the said Columbus J. Myers thereto, is his certificate and statement as follows:

"'I hereby certify that my answers to the foregoing questions are correctly recorded by the medical examiner.'

"10. By means of said statements and answers the said Columbus J. Myers represented and warranted to the defendant that he never had made an application or submitted to an examination for life insurance upon which a policy had not been issued on the plan and premium rate originally applied for without any exception of company or association, and that no negotiations for other insurance were then pending or contemplated without exception, and that the only illnesses, diseases or injuries he had had since childhood were pneumonia and typhoid; that he had had three attacks of pneumonia from which recovery was complete from twenty-five to thirty years before the time of said application; that he had had two attacks of typhoid, one in 1876 and the other in 1896, lasting about three weeks each, and in which recovery was complete in each case in four weeks from date of attack; that no physician had prescribed for him or had been consulted by him the preceding years; that he was then in good health, and without impairment; that he had no bodily deformity; that he did not use wine, spirits or malt liquors; on the contrary that he used none of them; and that during the preceding year he had used no kind of them and in any one day at the most had used none of them; that his daily average in the preceding years in respect of theta had been none; that he had been intoxicated twice only during the preceding five years; that he had never taken treatment for the alcoholic or drug habit; and that he became a total abstainer several years ago, and had been such for several years. He made each of said representations and warranties to the defendant for the purpose of inducing it to issue said policy of insurance, and offered each of the same to it as an inducement to issue the same. It believed said representations to be true, and it was induced thereby to issue said policy, and it issued the same in reliance thereon.

"11. Each of the statements and answers so made by the said Columbus J. Myers was untrue, and was known by him to be untrue, when made. In fact, before the said statements were originally made and before the contract sued upon was made, the said Columbus J. Myers had made application and had submitted to an examination for life insurance upon which a policy had not been issued to him on the

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