Mutual Life Ins. Co. of N.Y. v. Morgan

• Decision Date: 20 May 1913
• Citation: Mutual Life Ins. Co. of N.Y. v. Morgan, 135 P. 279, 39 Okla. 205, 1913 OK 339 (Okla. 1913)
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. MORGAN.
• Court: Oklahoma Supreme Court

135 P. 279

39 Okla. 205, 1913 OK 339

MUTUAL LIFE INS. CO. OF NEW YORK v. MORGAN.

Supreme Court of Oklahoma

May 20, 1913

On Rehearing September 2, 1913.

Syllabus by the Court.

Statements in an application for life insurance are representations only, and not warranties, where the application is not incorporated in the policy nor made a part of it by reference or otherwise, although in the application the insured warrants that his answers and statements therein are true.

Representations and statements in an application for life insurance, not strictly true, will not avoid the policy issued upon the application, unless they are material and substantially untrue, where they do not amount to warranties.

The fact that an applicant for life insurance is temporarily indisposed at the time of making the application will not avoid the policy, if the illness is not of a character to permanently affect his health, or render him more susceptible to the attack of disease, although he represents in the application that he is in good health at the time.

A temporary indisposition at the time a policy of life insurance is delivered, not likely to permanently impair health or render the person more susceptible to the attack of disease, will not avoid a policy of life insurance, though it is agreed in the application, not a part of the policy, that the policy shall not take effect unless delivered while the applicant is in good health.

In the Indian Territory prior to statehood, the fact that the insured had consulted several physicians within five years before the policy was written would not avoid the policy provided the consultation was with reference to slight and temporary ailments, although the application contained a statement that the insured had only consulted one physician in the preceding five years.

References in a life insurance policy to the application therefor in terms as follows: "Occupation: This policy is free from any restriction as to military or naval service, and, as to other occupations of the insured, it is free from any restriction after one year from its date, as set forth in the provisions of the application indorsed hereon or attached hereto. Suicide: The company shall not be liable hereunder in the event of the insured's death by his own act, whether sane or insane, during the period of one year after the issuance of this policy, as set forth in the provisions of the application indorsed hereon or attached hereto"--do not make the application a part of the policy, so as to render the statements in the application warranties rather than mere representations.

Commissioners' Opinion. Division No. 2. Error from District Court, Garvin County; R. McMillan, Judge.

Action by Barbara E. Morgan against the Mutual Life Insurance Company of New York. Judgment for the plaintiff, and defendant brings error. Affirmed.

J. B Thompson, of Pauls Valley, for plaintiff in error.

H. M Carr, of Pauls Valley, for defendant in error.

ROSSER C.

This is an action on a 15-year term policy of life insurance on the life of Marcus L. Morgan. The policy was issued in the Indian Territory prior to statehood, and the insured died prior to statehood. The issuing of the policy, the payment of the premiums, and the death of the insured are admitted. The defense is based upon certain statements in the written application for the policy, which are alleged to have been false. Morgan agreed in the application that all of his statements and answers in the application to the company's medical examiner were warranted to be true, and were offered to the company as a consideration for the contract. The application also contained the agreement that the policy should not take effect unless issued and delivered during his continuance in good health. The defendant alleges that the policy of insurance was not issued and delivered during the good health of the insured, and that the statement of the insured that Dr. N.H. Lindsay, of Pauls Valley, was the only physician whom he had consulted in the five years immediately preceding the making of the statements was not true; that he was in bad health at the time the policy was issued and delivered; and that he had consulted with and been prescribed for by numerous physicians besides Dr. Lindsay within the five years next before the policy was issued.

The first question involved is whether the statements of the application were warranties or only representations. Statements in an application should not be construed as warranties, unless the provisions of the application and policy taken together require that construction. N.W. Mut. L. Ins. Co. v. Woods, 54 Kan. 663, 39 P. 189. See, also, Darrow v. Society, 116 N.Y. 537, 22 N.E. 1093, 6 L. R. A. 495, 15 Am. St. Rep. 430; Fitch v. Insurance Company, 59 N.Y. 572, 17 Am. Rep. 372; Moulor v. American L. Ins. Co., 111 U.S. 335, 4 S.Ct. 466, 28 L.Ed. 447. The application in this case was not referred to in the policy, nor made a part of it. The rule is that, where the application for insurance is not made a part of the policy, nor referred to in it, the statements of the application are representations only and not warranties. In such cases the beneficiary can prove his case without disclosing the application. When he proves the policy and the death, he has made a prima facie case. 2 Cooley's Briefs on Insurance, 1134; Goddard v. East Texas Fire Ins. Co., 67 Tex. 69, 1 S.W. 906, 60 Am. Rep. 1; Queen Ins. Co. v. May (Tex. Civ. App.) 35 S.W. 829; Fitzgerald v. Supreme Council, 39 A.D. 251, 56 N.Y.S. 1005. The statements of the application in this case then should be considered representations and not warranties, and the fact that they were not strictly true would not avoid the policy unless they were material. Daniels v. Hudson River Fire Ins. Co., 12 Cush. (Mass.) 416, 59 Am. Dec. 192; Miller v. Mut. Benefit L. Ins. Co., 31 Iowa, 216, 7 Am. Rep. 122; Fitzgerald v. Supreme Council, 39 A.D. 251, 56 N.Y.S. 1005.

With reference to the effect of the statement in the application that the insured was in good health at the time the application was made, and the statement that Dr. Harve Lindsay, of Pauls Valley, was every physician whom he had consulted in the previous five years, the court instructed the jury, in substance, that the statements as to ailments and the consulting of physicians would not avoid the policy unless material. Also that a temporary ailment, not contributing in any way to the death of the insured, was not material.

The testimony concerning the health of the insured at the time the application was made was conflicting, and the evidence was also conflicting as to the nature of the ailment for which he had consulted other physicians than Dr. Harve Lindsay. The failure of a person applying for insurance, in replying to a question in the application as to the state of his health, to mention that he is slightly and temporarily indisposed at the time the policy is issued, if the indisposition is such as will not seriously or permanently affect his health, will not avoid a policy.

Nor will the policy be avoided by a statement that he is in good health at the time, though he may be ill and suffering from a temporary ailment not of a character to permanently affect his health, and the fact that he is so temporarily ailing from some disorder not of a nature to permanently impair his general health at the time the policy is delivered will not avoid the policy, though the application provides that the policy shall not be binding unless delivered while the insured is in good health. Mut. Life Ins. Co. v. Union Trust Co., 112 U.S. 256, 5 S.Ct. 119, 28 L.Ed. 708; Valentini v. Metropolitan L. Ins. Co., 106 A.D. 487 94 N.Y.S. 758; Woodward v. Insurance Co., 104 Tenn. 49, 56 S.W. 1020; Fidelity Mut. L. Ins. Co. v. Ficklin, 74 Md. 172, 21 A. 680, 23 A. 197; Blumenthal v. Berkshire L. Ins. Co., 134 Mich. 216, 96 N.W. 17, 104 Am. St. Rep. 604; Plumb v. Penn. Mut. L. Ins. Co., 108 Mich. 94, 65 N.W. 611; Hann v. Nat'l Union Ins. Co., 97 Mich. 513, 56 N.W. 834, 37 Am. St. Rep. 365; Pudritsky v. Knights of Honor, 76 Mich. 428, 43 N.W. 373; Brown v. Insurance Co., 65 Mich. 316, 32 N.W. 610, 8 Am. St. Rep. 894; Billings v. Met. L. Ins. Co., 70 Vt. 477, 41 A. 516; ...