National Cas. Co., Detroit, Mich. v. First Nat. Bank & Trust Co.
| Decision Date | 23 April 1957 |
| Docket Number | No. 37463,37463 |
| Parties | NATIONAL CASUALTY COMPANY, DETROIT, MICHIGAN, Plaintiff in Error, v. FIRST NATIONAL BANK and TRUST COMPANY, Executor of the Estate of Dr. L. C. Trotter, Deceased, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
To avoid a policy of insurance on account of fraudulent misrepresentation, the allegedly false statements constituting the fraudulent misrepresentation must have been relied upon by the insurer in issuing the policy. Where, in the present action to recover benefits allegedly due under such a policy, the insurer defended on that ground, but there was no evidence tending to prove its reliance on the allegedly false statements, the trial court committed no error in sustaining plaintiff's motion for a directed verdict and entering judgment in accord with said verdict.
Appeal from Court of Common Pleas, Tulsa County; Leslie Lisle, Judge.
Action for the amount claimed to be due under the provisions of a group insurance contract providing indemnity for disability from sickness or accident. After a directed verdict and judgment for plaintiff, defendant appealed. Affirmed.
Rucker, Tabor & Cox, Dennis J. Downing, Tulsa, for plaintiff in error.
Wheeler & Wheeler, Tulsa, for defendant in error.
Defendant in error, executor of the estate of a deceased Tulsa dentist, Dr. L. C. Trotter, instituted this action against plaintiff in error, to recover a certain sum of money as monthly benefits for the period of said dentist's disability before his death, allegedly due under the terms of a group insurance contract plaintiff in error entered into with said dentist, as a member of the American Dental Association. At the close of the evidence, the trial court sustained the executor's motion for a directed verdict in the sum of $1,773.34; and, after entry of judgment in accord with such verdict, the defendant insurance company perfected the present appeal. Our continued reference to the parties will be by their trial court designations.
The substance of the alleged defense to the action was that defendant's issuance of the insurance contract, or policy, was procured by fraud, which consisted of misrepresentations Dr. Trotter allegedly made concerning his health and medical history in applying for the policy, which misrepresentations were allegedly relied upon by defendant in issuing the policy.
Dr. Trotter's application for the policy was dated April 1, 1954. The policy was thereafter issued, and became effective one month later. Trotter, hereinafter referred to as the testate, became disabled June 23, 1954, by reason of the illness from which he never recovered.
In the present appeal, there is no dispute about the amount of plaintiff's recovery, there being no contention that if defendant was liable on the contract at all, the verdict is excessive. As above indicated, however, it is earnestly contended that, on the basis of the evidence, the insurance contract was vitiated and rendered unenforceable by the testate's fraudulent misrepresentations of the condition of his health and medical history on his application for the contract, or policy. These claimed misrepresentations consisted of the testate's writing the word 'yes' in answer to the first, and the word 'no' as his answer to the second and third of the following questions printed on the application form:
The diagnosis, and exact nature, of the testate's illness was never established at the trial. More than one witness testified that for some unspecified time before he applied for the insurance, he had coughing spells. One witness was permitted to testify, in substance, that the testate's wife told her this worried her so she could not sleep at night. The testate's brother, Dr. Virgil H. Trotter, testified that...
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