Mutual Life Insurance Company of New York v. Hoffman
| Decision Date | 22 December 1921 |
| Docket Number | 10,609 |
| Parties | MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. HOFFMAN |
| Court | Indiana Appellate Court |
From Jay Circuit Court; Theodore Shockney, Special Judge.
Action by Katherine Hoffman against the Mutual Life Insurance Company of New York. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Frederick L. Allen, Abram Simmons, Charles G. Dailey, Richard H Hartford and John J. Kelly, for appellant.
Clark J. Lutz and Frank B. Jaqua, for appellee.
The facts as found by the court are in substance as follows:
On November 8, 1913, one Frederick Hoffman made a written application to appellant for a life insurance policy on one of the regular applications used by appellant for that purpose. Said application contained the following statement In the statement to the medical examiner the insured was asked what illness or diseases he had had since childhood, to which he replied "no sickness except lumbago." He was also asked to state every physician or practitioner who had prescribed for or treated him and whom he had consulted within the past five years, to which he answered: "Dr. Boyers, Decatur, Indiana." He also in answer to questions said that his answers to said questions stated all illnesses and diseases he had had since childhood, and that he had given the name of every physician consulted during the past five years. On November 25, 1913, appellant delivered to said insured its policy dated November 8, 1913, for $ 3,000, the annual premium on said policy being $ 288.15 payable November 8, of each year. The insured died March 23, 1915. All the premiums on said policy were paid as and when they matured. Appellee who was the wife of insured was named as beneficiary in said policy. Proofs of his death were furnished appellant, as required by the terms of the policy. The insured at the time he made answers to the medical examiner submitted himself to a physical and medical examination by appellant's medical examiner, who then made a full and careful examination of applicant and made a report of his examination to appellant upon a blank furnished by appellant in which said medical examiner reported the examination made in detail stating the age, weight, chest measurements, rate of pulse, result of examination of urine, the absence of any evidence of certain diseases and closing with a statement of the examiner to the effect that he was satisfied that every question had been answered fully and correctly and that he "without reservation" recommended the application. The court further found that the applicant did not make any false or fraudulent statements or answers in either his application for insurance or in his statement to the medical examiner; that he did not warrant any of his statements or answers to be true; that none of his statements or answers to the medical examiner were untrue, nor were any of them made with the intention to deceive or defraud appellant.
In September and November, 1910, the insured procured treatment from a physician for some temporary illness from which he had fully recovered November 8, 1913. On May 31, 1913, while the insured was working at his usual occupation, he was taken sick at his stomach and suffered from a temporary illness or indigestion, not serious in its character and from which he had fully recovered long before November 8, 1913. On June 3, and 7, 1913, his urine was analyzed by his family physician, Dr. Boyer. This analysis failed to show any evidence of nephritis, any abnormal condition, high specific gravity, or casts of albumen; that said insured was not afflicted with or suffering from nephritis or hypertrophy of the heart upon any of the dates here before mentioned; that whatever illness or sickness the insured had been afflicted with prior to November 8, 1913, he had fully recovered from, and was on said last-named date of sound health; that said insured, on November 25, 1913, or prior to said day, had no reason to believe he was afflicted with nephritis or any other serious illness. On November 15, 1913, the insured was ill, and was attended by his family physician, who at that time made an analysis of his urine, and discovered that the insured was then suffering from acute nephritis. He recovered from said attack of acute nephritis, and resumed his usual vocation, he being a contractor, and went about his usual employment until his last sickness in 1915. At no time during the life of said insured did he know that he was afflicted with nephritis, nor was the character of his illness in November, 1913, ever communicated to him by anyone. He died March 23, 1915, from interstitial nephritis.
At the time the insured made and signed his application for insurance and when he made his answers to the medical examiner and at the time of his examination by the examiner the insured was free from the disease of which he died, and every serious illness, and so far as he knew, was free from the disease with which he died and from all other serious illnesses. The policy in question was delivered to the insured November 25, 1913, by Pearl Hawthorne, appellant's authorized agent, at which time the insured paid said agent the first annual premium of $ 288.15, which premium was accepted and received by appellant and still retained by appellant. At the time of the delivery of said policy to the insured he was sick and confined to his bed with a temporary illness from which he afterwards fully recovered. At the time of delivery of said policy appellant's agent Hawthorne saw the insured, conversed with him and was fully informed of the insured's physical condition before the delivery of the policy, and after being fully informed and advised as to the illness of said applicant, and after the insured had first declined to receive or accept said policy on account of his then present illness until after he should recover therefrom, said insured, at the urgent solicitation and request of said agent, received and accepted said policy and paid the first premium thereon. Before accepting said policy and paying said premium the insured told said agent he would rather not accept the policy, on account of his temporary illness, until after he had fully recovered therefrom, and in response thereto said agent informed the insured, that having made application for the policy when he was in good health and appellant having accepted his application and having issued the policy, he was entitled to receive it and insisted that he should receive it. On November 14, 1913, after said application had been made, the insured was taken sick at his boarding house in Bryant, Indiana, where he was then working and was attended by a physician who informed him that his illness was indigestion. He fully recovered therefrom within a day or two. The doctor who attended him during this illness made an analysis of his urine but never informed the insured as to the result of said analysis and the insured never knew the cause of said illness to be any other than indigestion caused from overeating. A few days after the delivery of said policy appellant's agent, who had solicited the application and who had delivered the policy to the insured, informed appellant's state agent at Indianapolis that he had delivered said policy to the insured, and that at the time of said delivery the insured was ill and confined to his bed, at which time said state agent informed said Hawthorne that although it was against the company's rules, and that he should not have delivered said policy, they would let it go, but for him to be careful in other cases. Said Hawthorne, at that time, stated that he did not know whether he should have delivered the policy or not, and that he would endeavor to get the policy and return premium which had been paid therefor if the state agent so desired. The court also found that appellant, by its acts in delivering said policy, waived the provision that it should not take effect unless and until the first premium had been paid during the applicant's continuance in good health, and unless the policy had been delivered to and received by applicant while in good health. Appellant on June 18, 1915, tendered to appellee the sum of $ 614, that being the amount of the two premiums paid by insured to the company, with six per cent. interest to the date of tender. Appellee refused to accept said tender, and refused to deliver said policy to appellant, after which appellant kept and retained said money and did not give or pay any part of it to plaintiff, and never at any time paid said sum or any part thereof into court for the use and benefit of appellee, and that said tender was not made with reasonable promptness after appellant had received knowledge of the facts.
Upon these facts the court concluded that the law was with appellee and that she should recover $ 3,000, with interest from April 1, 1915.
The errors assigned and relied upon are that the court erred in its conclusions of law and in overruling appellant's motion for a new trial.
We have here a case where the insurer and the insured agreed that "All statements made by the insured, shall in the absence of fraud, be deemed representations and not warranties." Appellant, realizing the force and effect of this agreement,...
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