Myers v. Mutual Life Ins. Co. of New York
| Decision Date | 18 February 1919 |
| Docket Number | 3551. |
| Parties | MYERS v. MUTUAL LIFE INS. CO. OF NEW YORK. |
| Court | West Virginia Supreme Court |
Submitted February 11, 1919.
Syllabus by the Court.
The declarations and statements made by the insured in an application for a policy of life insurance are, according to their nature and effect, either representations or warranties.
"Warranties" in such a policy of insurance constitute part of the contract and stipulate for the absolute truth of the statement made. They must be strictly complied with, else the policy may be avoided.
"Representations" are not, strictly speaking, part of the insurance contract but are collateral thereto. They are statements made to the insurer before or at the time of making the contract presenting the elements upon which the risk is either accepted or rejected.
Such statements or declarations will not be construed to be warranties unless the provisions of the application and the policy taken together leave no room for any other construction.
A policy of insurance issued upon an application containing statements and declarations which are treated as representations will not be avoided because of the falsity thereof, unless they are untrue in a material regard, and are made with the intent to mislead or deceive, or are a statement of some material fact as true without its being known to be true, and which has a tendency to mislead.
Statements or declarations made by an applicant for insurance as to the condition of his health, as to his habits in regard to the use of intoxicating liquors, as to his previous condition of health, and as to his having consulted or not consulted physicians within a prescribed period, will be treated as representations, unless it plainly appears that the parties intend them to be warranties.
The answer of an applicant for insurance to a particular question directed to him will be treated as a material representation. The fact that a specific answer is sought and obtained in regard thereto is proof that the parties consider the matter material.
In determining whether or not an applicant for insurance has been treated by a physician so as to render voidable a policy of insurance issued to him upon the representation that he had not been so treated, prescriptions for slight temporary ailments will not be considered; neither will such slight temporary ailments be taken into consideration in determining the truth or falsity of a representation as to diseases or maladies with which the insured may have been afflicted.
A policy of life insurance issued upon an application in which is contained a representation of the insured that he did not at the time of making said application, use intoxicating drinks, and had not used any for more than a year, but that he had been intoxicated twice within the preceding five years, will not be avoided by proof that the insured more than two years prior to the application for the insurance had used intoxicating drinks, and had been under the influence thereof on at least two occasions.
A policy of insurance, issued upon an application therefor, in which the representation is made, in answer to a question asked, that the insured had not consulted nor been treated by a physician within five years next preceding the making of said application, will be avoided at the instance of the insurer upon a showing that the insured within said time had been treated for several consecutive months for a chronic malady with which he was then suffering.
A policy of insurance will be avoided at the instance of the insurer, where the insured, in answer to a question in his application for insurance, states that he had since childhood only suffered from certain named complaints from which he had fully recovered, when the evidence shows that he had been treated for several months at a time long subsequent to the complaints mentioned by him for a disease with which he was then suffering.
Upon the trial of a suit to recover upon a policy of life insurance, where the defense is that the insurer has the right to avoid the policy because of alleged false representations made by the insured in his application therefor, the opinion of the medical director of the insurer as to what action would have been taken upon such application had all of the representations therein made been in accordance with the truth as contended for by the insurer, or as to the general custom of insurance companies in passing upon an application containing such representations, is not admissible as evidence.
Error to Circuit Court, Wetzel County.
Action by W. O. Myers, committee, etc., against the Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant brings error. Reversed and remanded for a new trial.
Brown, Jackson & Knight, of Charleston, Thos. P. Jacobs, of New Martinsville, and Frederick L. Allen, of New York City, for plaintiff in error.
Edwin O. Keifer, of New Martinsville, for defendant in error.
This writ of error seeks the reversal of a judgment rendered upon two policies of insurance issued by the defendant upon the life of Columbus J. Myers. The policies in question were issued on the 15th day of April, 1912, and Myers died on the 14th day of December of the same year. Prior to the issuance of the policies, Myers made to the company written applications therefor. In these applications he made certain statements as to the condition of his health, both at that time and previously, as to his having consulted a physician, or physicians, within five years previous thereto, and as to his habits in regard to the use of intoxicating liquors. In answer to a question contained in the application, Myers stated that he had had three attacks of pneumonia in 1887, 25 years prior thereto, and two attacks of typhoid fever in 1876 and 1896; that his recovery from all of those illnesses had been complete. And in answer to a specific question he replied that the above were all of the illnesses, diseases, or injuries with which he had been afflicted since childhood. He was also asked to state every physician who had prescribed for him, or whom he had consulted in the past five years, and to this question he answered that no physician had prescribed for him, and he had consulted none within that time. In answer to a question as to whether or not he was in good health, he answered that he was, and that there was no impairment of his health. He further replied, in answer to a question as to whether he had any bodily deformity, that he had none. He was asked in the application whether or not he used wine, spirituous, or malt liquors, and replied thereto that he did not. In answer to a question as to what kind of such liquors he had used within the past year, and how much in any one day, he replied that he had used none within that time. In answer to a question as to whether or not he had been intoxicated during the past five years, he answered that he had been so intoxicated twice within that time. He also replied that he had never taken treatment for the liquor or drug habit, and that he was a total abstainer and had been such for several years. It is charged in the statement of defense made by the company that the answers made by Myers above referred to were false; that in fact and in truth he had had other illnesses since childhood than those referred to; that he had consulted physicians, and had been prescribed for by physicians within five years next preceding the making of the application; that he was not in good health at the time he made the application; and further that he was at said time, and had been for a long time prior thereto, addicted to the excessive use of intoxicating liquors, and because of these alleged untruthful and false representations the defendant sought to avoid the payment of the amount of the policies.
The evidence offered in support of these contentions shows that Myers was formerly a resident of Wetzel county, W. Va.; that several years prior to the making of the applications for these policies of insurance he removed to Oklahoma; that he resided there for awhile, and about the year 1907 or 1908 he removed to New Mexico, where he resided for about two years returning to Oklahoma in the fall of 1909 or 1910, where he resided until a short time after the issuance of the policies, when he returned to his old home in Wetzel county, W. Va., dying there in December, 1912. In regard to the use of intoxicating liquors, it appears that during the two years that Myers lived in New Mexico he drank intoxicating liquors to some extent. This is shown by a number of witnesses. It appears that he lived at some distance from a town where intoxicating liquors were sold, and went to that town some two or three times a month, and that on those occasions he drank intoxicating liquors. No witness, however, testifies to seeing him under the influence of such liquors during this time on more than two occasions. There are some witnesses introduced by the defendant company who testify that on some occasions after Myers returned to Oklahoma from New Mexico he appeared to them to be under the influence of intoxicating drinks, but no witness testifies that he ever saw him take a drink after he returned from New Mexico. A great many of his intimate business and familiar associates testify that Myers was not only a temperate man, but that during the time he lived in Oklahoma, after his return from New Mexico, they never knew him to take a drink, or to be under the influence of liquor. We think it may safely be said that the evidence proves without substantial contradiction that Myers did use intoxicating liquors while he was in New Mexico, which was more than two years before the issuance...
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