N.Y. Life Ins. Co. v. Smith
| Decision Date | 31 July 1928 |
| Docket Number | Case Number: 18650 |
| Citation | 1928 OK 506,271 P. 1037,133 Okla. 256 |
| Parties | NEW YORK LIFE INS. CO. v. SMITH. |
| Court | Oklahoma Supreme Court |
¶0 1. Insurance--Life Policy--Construction--Statements of Insured as Representations and not Warranties.
Where a life insurance policy provides: "All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid the policy or be used in defense to a claim under it, unless it be contained in the written application and a copy of the application is indorsed upon or attached to this policy when issued," the statements by the insured are to be construed as representations and not warranties in the absence of fraud.
2. Same--Misrepresentations of Insured as Defense--Burden of Proof.
Where a policy of life insurance provides that all statements made by the insured shall, in the absence of fraud, be construed as representations and not warranties, in order for misrepresentations made by the insured in an application to avail the insurer as a defense, it must show, not only that the statements were not true, but that they were willfully false, fraudulent, misleading, and made in bad faith, and that insurer in good faith relied on same.
3. Same--Action on Life Policy--Misrepresentations as Defense--Instructions.
In a suit on an insurance policy, where it is contended that a false and fraudulent misrepresentation or concealment of a material fact by the insured has rendered the contract for insurance void, and where the evidence is conflicting, or where different inferences may be legitimately drawn from the evidence, the question should be submitted to the jury under instructions which take into account the materiality of the misrepresentation and the fraudulent purpose or intent of the insured to deceive.
4. Same--Instruction that Information Given Special Agent is Binding on Company not Error Although Information not Communicated by Agent to Company.
Where, in an action upon a life insurance policy, it appears that the insurance company employed a special referee for the purpose of making an investigation and verifying the representations contained in the application for insurance, it was not error to instruct the jury that any information communicated to said agent or special referee in connection with the statements contained in the application for insurance is to be regarded as information communicated to the defendant even though the same might not have been transmitted by said agent or referee to the home office of defendant.
Error from District Court, Oklahoma County; T. G. Chambers, Judge.
Action by Mrs. Blake C. Smith against New York Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Wilson & Wilson and Louis H. Cooke, for plaintiff in error.
Ames, Lowe & Cochran and Ledbetter, Stuart, Bell & Ledbetter, for defendant in error.
¶1 Mrs. Blake C. Smith, as plaintiff, sued the New York Life Insurance Company, as defendant, in the district court of Oklahoma county, to recover the sum of $ 25,000 alleged to be due her as the beneficiary in three life insurance policies issued by the defendant company on the life of her husband, Turner R. H. Smith, who it was alleged had died on June 17, 1926, while said policies were in full force and effect. Trial was had before a jury in the district court of Oklahoma county, and a verdict returned in favor of plaintiff for the amount sued for. Motion for new trial was filed and overruled, and judgment was rendered for the plaintiff on the verdict of the jury, and to reverse this judgment defendant prosecutes this appeal. For convenience the parties will be referred to here as they appeared in the court below.
¶2 The execution and delivery of the policies, payment of the premium thereon, and the death of the insured, while same were in full force and effect, are admitted by the defendant company. The contention of the defendant in the court below was that the insured in making application for the insurance made false answers to certain questions concerning the previous condition of his health, and the policies were therefore obtained by fraudulent representations and are not binding on the company, the death of the insured having occurred within one year from date of issuance of the policies, and it denied liability on same and tendered back the amount it had received as premium on each of said policies. Plaintiff admitted that incorrect answers were given to certain questions contained in the written application, but contended that, even though incorrect in some details, they did not contain any material error or fraudulent representations, and that defendant was not misled or defrauded thereby, and that irrespective of said answers, defendant did not rely on the statements contained in the application, but pursued an investigation of its own through its special representative in Oklahoma City and obtained the information it now claims was fraudulently withheld by the insured, and with full knowledge of the facts and of the answers in said application claimed by it to be fraudulent and erroneous, accepted said premiums and issued and delivered the policies without in any way relying on said answers, and thereby waived any right to deny its liability by reason of the same.
¶3 Upon the issues thus joined, the case was tried to a jury and judgment rendered as hereinbefore set out. Some 18 assignments of error are contained in the petition in error filed herein, but only five are argued in the brief filed by defendant, and only these assignments of error will be considered; the others, not being argued nor presented in the brief, will be deemed waived.
¶4 The questions relied upon by defendant for reversal both on oral argument and in the briefs filed are presented under two general propositions as follows:
¶5 In support of the first proposition, the defendant calls attention to the following stipulation contained in the policy of the insured:
"That only the president, a vice president, a second vice president, a secretary, or the treasurer of the company can make, modify, or discharge contracts or waive any of the company's rights or requirements; that notice to or knowledge of the soliciting agent or the medical examiner is not notice to or knowledge of the company, and neither one of them is authorized to accept risks or to pass upon insurability."
¶6 And further calls attention to the testimony relative to the authority of the company's special representative or referee, Andrew R. Parker, which was to the effect that said Parker was employed by the company to make investigation in connection with the application, and to make his reports on forms furnished by the company in each and every case, and that he had no power or authority except to obtain answers to the questions contained in the company's printed forms for use in such cases; that he was paid a particular fee for each of said reports, and had no power or authority to pass on an application for insurance, either in accepting or rejecting the application.
¶7 In this connection, the defendant requested the court to give requested instruction No. 7, which was to the effect that the insurance company could limit the authority of its agents, and that in view of the above stipulation contained in the policy of insurance, the information obtained by Parker as to the falsity of the representations contained in the application for insurance made by the insured would not be binding on the defendant, or constitute a waiver or estoppel on its part to set up said false answers as a defense to the policies of insurance sued on unless said information was shown to have been within the knowledge of one of the officers of the company mentioned in said stipulation aforesaid, and they or either of them, with such knowledge, waived on behalf of said defendant company the false answers contained in said application.
¶8 It is contended by defendant, refusal to give this instruction was reversible error, and that the giving of instruction No. 6 was also reversible error. The alleged erroneous instruction No. 6 was as follows:
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