Mutual Life Ins. Co. of New York v. Denton
| Decision Date | 15 February 1927 |
| Citation | 112 So. 53,93 Fla. 276 |
| Parties | MUTUAL LIFE INS. CO. OF NEW YORK v. DENTON. |
| Court | Florida Supreme Court |
Error to Circuit Court, Putnam County; A. V. Long, Judge.
Action by Alta M. Denton against the Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant brings error.
Reversed.
Syllabus by the Court
Plea that insured untruly represented in application that policy had never been refused him on plan and premium rate originally applied for sets up good defense to action on policy. In an action upon a life insurance policy, a plea that the insured in his application for the policy made an untrue representation that he had never made an application nor submitted to an examination for life insurance upon which a policy had not issued on the plan and premium rate originally applied for sets up a good defense.
Signed application, physician's examination, and unfavorable report and destruction of application held to prove application for policy of life insurance and rejection. A signed application for life insurance, a doctor's physical examination of the applicant, an unfavorable report and a destruction of the application by the applicant or agent through whom it was made constitute proof of the plea mentioned in the first headnote.
Applicant for life insur ance should exercise toward company same degree of good faith company is required to exercise toward him. An applicant for life insurance should exercise toward the company to which he applies for insurance the same degree of good faith which the company is required to exercise toward him.
Applicant's representation that he made no prior application for insurance in any company is material, and, if untrue vitiates policy. A representation by an applicant for life insurance that he had made no prior application for life insurance in any company is material, and, if untrue, will vitiate the policy if issued.
Supreme Court may dismiss appeal for failure to print or typewrite transcript of record according to rule (Supreme Court rules rule 11). In the preparation of transcripts of records that are intended for this court, rule 11 of the Supreme Court rules requires that they should be 'clearly and legibly typewritten or printed in black ink.' If the rule is not observed, the court may exercise the discretion vested in it to dismiss the cause.
Doggett, Christie & Doggett, of Jacksonville, for plaintiff in error.
Walton & Dineen and J. C. Calhoun, all of Palatka, for defendant in error.
This was an action upon two policies of life insurance, each for $1,000, issued by the plaintiff in error upon the life of Fred P. Denton; the beneficiary named in each was the wife of the insured, the defendant in error here. The policies were dated respectively the 17th and 29th of April, 1922.
Denton died on the 23d day of September in the same year. Mrs. Denton notified the insurance company of the death of her husband and submitted proof of his death. The company refused payment, and action was brought upon the policies by Mrs. Denton in June, 1923. There was a verdict and judgment in her favor in the sum of $2,520, which included interest and attorneys' fees.
To that judgment the defendant, the Life Insurance Company, took a writ of error.
The case was tried upon the following issues:
First, that Denton in making application for the policies of insurance agreed that they should not take effect unless the first premium on each was paid and the policy received by him during his continuance in good health, but they were delivered to him and he received them while he was affected by tuberculosis of the lungs.
Second, that in his application Denton represented that he had never made an application nor submitted to an examination for life insurance upon which a policy had not issued on the plan and premium rate originally applied for; that the representation was untrue and defendant was misled by it; that Denton had submitted to an examination for life insurance and applied to the Penn Mutual Life Insurance Company for life insurance in April of the same year and prior to the date of his application to the defendant company, and the Penn Mutual Company had not issued the policy, and upon discovery of the misrepresentation the defendant canceled the policy and tendered to Mrs. Denton the first premium which had been paid and the interest thereon.
Third, that in his application for the policies of life insurance Denton represented that within the past five years he had consulted only two physicians, once in 1917 for acute indigestion and in 1918 for inguinal hernia; that the representation was untrue and the defendant was misled by it, and upon discovering covering that it was untrue canceled the policy and tendered to Mrs. Denton the first premium and interest thereon.
Three of the five errors assigned are discussed; they present the question of the sufficiency of the evidence to support the verdict.
The affirmative plea of the defendant presenting the issue of a former application by Denton to a life insurance company for life insurance and submission to an examination for that purpose and that the policy was not issued is amply supported by the evidence.
About April 7, 1922, and prior to the application to the defendant company for insurance, Denton made application, through B. M. Comfort, the agent of the Penn Mutual Life Insurance Company, for insurance in that company. Denton, in company with Comfort, went to the office of Dr. Welch, who at that time was connected with the Penn Mutual Company in the capacity of medical examiner in Palatka. Denton was examined by Dr. Welch. The examination was unfavorable. He so reported to Comfort, and the application was not forwarded to the company, but destroyed.
Dr. Welch said that he made a complete physical examination of Denton, that Denton had incipient tuberculosis, the condition was chronic, and that the condition of Mr. Denton then observed by the doctor would continue for a period of six weeks.
Mr Comfort, the agent through whom the application was made to the defendant company, was also the agent through whom the application was made to the Penn Mutual Company. His recollection of the transaction related by Dr. Welch is not so clear. There is not in his testimony a single definite statement of fact as to any incident bearing upon the issue. He did not remember the day of the month of April when Mr. Denton made application through him...
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