Raymond v. National Life Ins. Co.

• Decision Date: 17 January 1929
• Docket Number: 1524
• Citation: 273 P. 667,40 Wyo. 1
• Parties: RAYMOND v. NATIONAL LIFE INS. CO. [*]
• Court: Wyoming Supreme Court

273 P. 667

40 Wyo. 1

RAYMOND v. NATIONAL LIFE INS. CO. ^[*]

No. 1524

Supreme Court of Wyoming

January 17, 1929

Rehearing denied March 12, 1929.

APPEAL from District Court, Fremont County; EDGAR H. FOURT, Judge.

Action by Clara B. Raymond against the National Life Insurance Company. There was a judgment for defendant and plaintiff appeals.

Affirmed.

John J Spriggs, for appellant.

An insurance contract can be made only by an authorized agent Chap. 147, Laws 1925; Ins. Co. v. Cameron, 205 P 151. Williams was held out as defendant's agent and it is estopped to deny his agency, Ins. Co. v. Green, 166 P. 109; Stone v. Hawkeye, 68 Ia. 737; Ins. Co. v. Goyne, 16 L. R. A. (N. S.) 1180; and cases cited; Martin v. New York Life Co., 40 A. L. R. 406. False answers in an application for insurance inserted in application by a medical examiner are not binding on the applicant, Reppond v. National Life, 11 L. R. A. (N. S.) 981; New York Life Co. v. Clark, 235 P. 1081; Billings v. Ins. Co., 41 A. 516; Monahan v. Mutual Life, 5 L. R. A. (N. S.) 761. Such statements are mere representations, Wyo. Ins. Code, Sec. 51. The Insurance Company withheld the premium after receiving retail credit company's report. The medical examiner reported applicant to be insurable and the company was bound by his report, Victoria S. S. Co. v. Assurance Co., 139 P. 1; Roe v. Ins. Co., 17 L. R. A. (N. S.) 1148. Applicant had a right to rely on representations made by the agent, Security Co. v. Cameron, 205 P. 151; Halle v. Ins. Co., 58 S.W. 822; Flynn v. Ins. Co., 78 N.Y. 568; Alger v. Metropolitan Life, 84 Hun. 271; Meehler v. Ins. Co., 38 Wis. 665; Ins. Co. v. Trento, (Tex.) 99 S.W. 740; Sternaman v. Ins. Co., 57 L. R. A. 318. In this case the company's agent assured the applicant, that having passed a satisfactory medical examination, his insurance would be effective from the date of his medical examination, the applicant having made the first premium payment, which was received, and retained by the company. The delay on the part of the company in acting upon the application prior to applicant's death, induced the applicant to refrain from securing other insurance; it also induced the applicant to permit some of his existing insurance to lapse; the trial court erred in its instructions to the jury on the subject of agency, estoppel, and the essentials of making an insurance contract. In this case, the premium was never returned to decedent's estate. Central Trust Company was without authority to accept it, that company being a creditor of the estate should have filed its claim in the regular way, American Co. v. Rosenstein, 92 N.E. 380; American Bankers Ins. Co. v. Thomas, 154 P. 44. Instruction No. 3 commented upon the evidence as to the state of applicant's health, a point not properly before the court. Instruction No. 4 is not applicable to the case, and deprived the jury of passing upon the question as to whether there was a contract made. Instruction Nos. 5 and 6 are misleading and confusing. There was a contract made to issue a policy, Pfeister v. Ins. Co., 116 P. 246; Royal Ins. Co. v. Walker, 24 Wyo. 59; Gish v. Ins. Co., 13 L. R. A. (N. S.) 828. Specific performance should have been decreed, Van Arsdale-Osborne v. Cooper, 115 P. 780. Instructions Nos. 8 and 9, deprived the jury of the right to determine whether a contract had been made. Additional instruction No. 1 was coercive. The court erred in refusing to give instructions requested by plaintiff. The question of contract was one for the jury, Wyoming Central Irrigation Co. v. Burroughs, (Wyo.) 115 P. 435. The question of fraud is always for the jury, New York Life v. Clark, 235 P. 1081; Reserve Loan Life v. Isom, 173 P. 843. The question of the agent's authority was for the jury, Mass. Co. v. Vance, 15 A. L. R. 981. The court erred in admitting improper evidence given by medical witnesses, such evidence being privileged and inadmissible under the statutes of the state, 5807 C. S., 28 R. C. L. 496; Griswold v. Hart, 98 N.E. 918; Dilleber v. Ins. Co., 69 N.Y. 256. The hospital records were incompetent, Ins. Co. v. Asylum, 51 L. R. A. (N. S.) 22; Bryant v. Modern Woodmen, 27 L. R. A. (N. S.) 326. Observation of a patient is a communication and testimony thereof is forbidden by the statute, Finnegan v. Sioux City, 112 Ia. 232; Wood v. Lisbon, 16 L. R. A. (N. S.) 888. Likewise the testimony of hospital attendants should have been excluded. The death certificate was inadmissible, since it violated the statute excluding a physician from giving testimony. These records were immaterial; the insurability of applicant, and not the cause of his death, was the issue. The court erred in striking out essential portions of plaintiff's pleadings, particularly the facts alleging estoppel. The attempt to return the premium was not a return, Security Co. v. Cameron, supra. Defendant was negligent in delaying action on the application, Columbia v. Lemmons, 222 P. 256; Childers v. Ins. Co., 245 P. 59. The company was bound to act promptly, Northwestern Mutual Co. v. Neafus, 36 L. R. A. (N. S.) 1211. The court erred in refusing to instruct on the subject of the negligent acts and conduct of defendant's agents, Boyer v. Ins. Co., 121 P. 326; Ins. Co. v. Dolan, 239 S.W. 236. Insurance contracts should be contrued most favorable to the insured, Metropolitan Life v. Bovelli, 51 A. L. R. 1040. The court gave confusing instructions which were erroneous, Metropolitan Life v. Howle, 68 Ohio St. 614, 68 N.E. 4. A contract was made as between Raymond and defendant company, and the jury should have been permitted to pass on the question. The verdict should have been for plaintiff.

William E. Mullen and William E. Hardin, for respondent.

The obligations of the defendant are shown by the application which is a part of the petition, and further controls the averments of the pleading, 31 Cyc. 560, Laws 1925, Chapter 93. Soliciting agents are without authority to make insurance contracts, Ins. Co. v. Marsh, (Okla.) 125 P. 1100; Wood on Insurance, Sec. 17; Ins. Co. v. Boles, (Tex.) 288 S.W. 271. Insurance contracts must be in writing in this state, Laws 1921, Chapter 142. The jury found that defendant had acted upon the application within a reasonable time: and that was a question for the jury to determine, Ins. Co. v. Lemmons, 66 Okla. 288, 222 P. 255; Ins. Co. v. Cameron, 87 Okla. 171, 205 P. 151, 27 A. L. R. 444; Duffy v. Ins. Co., (Ia) 139 N.W. 1087, 46 L. R. A. (N. S.) 25. Appellant's counsel has cited a number of cases relating to the authority of fire insurance agents, and parol fire insurance agreements, none of which are applicable to the present case. It was stipulated in the application that it should be accepted at the home office before any contract would exist. A general exception to the instructions taken by counsel for plaintiff are of no avail, State v. Crump, 35 Wyo. 41; Dickerson v. State, 18 Wyo. 473. All of the instructions given by the court are supported by evidence and cover the issues made by the pleadings, Strand v. Bankers Ins. Co., (Nebr.) 213 N.W. 349; Evans v. International Life Ins. Co., (Kans.) 252 P. 266; Etenburn v. Co., (Okla.) 246 P. 383; N.W. Mutual Life Ins. Co. v. Neafus, 145 Ky. 563. Instruction No. 3 A, was a correct statement of the law, DeFord v. Ins. Co., (Colo.) 256 P. 317. The company had a right to determine the insurability of Raymond, Irrigation Co. v. Burroughs, 19 Wyo. 176. Insurance contracts must be in writing, Laws 1921, Chap. 142. All of the instructions were supported by authority, several of them by the decisions of this court. Instruction additional No. 1 was the subject of the decision in Harris v. State, 23 Wyo. 513, as to the duty of the jury to agree upon a verdict. The error assigned with reference to the admission of evidence given by physicians is without merit. Plaintiff called Dr. Replogle who had attended decedent. The other physicians did not testify as to communications made to them by Raymond, but they testified as to what they observed as to his state of health, which was proper, Insurance Co. v. Howle, 68 Ohio St. 614, 68 N.E. 4; 4 Jones Evidence 759; Livingston v. Ry. Co., (Nebr.) 175 N.W. 662; Woods v. Libsen, 116 N.W. 143. Death certificates being public records, are admissible, Sec. 3642-3649 C. S.; State v. Pabst, (Wis.) 121 N.W. 351; Vozicevich v. Co., (Utah) 17 A. L. R. 346. It is admitted by the petition that answers made by Raymond to the medical examiner were untrue. The rule of privilege was waived, Chaffee v. Kaufman, (Kans.) 214 P. 618; In re Fleming, (Ia.) 195 N.W. 242. A beneficiary may waive the privilege, Blish v. Green, (Ind.) 120 N.W. 606; Ins. Co. v. Granden, (Nebr.) 89 N.W. 448. The testimony of medical witnesses was material only in showing justification on the part of defendant in refusing to accept the application; no contract was made, hence no fraud was accomplished by the applicant in making untruthful answers in his application for insurance. Applicant was not insurable in any company for more than one year prior to his death, hence, even if there had been delay in passing on his application, he was not damaged, Insurance Co. v. Neafus, (Ky) 36 A. L. R. (N. S.) 1211; Strand v. Bankers Life Ins. Co., (Nebr.) 213 N.W. 349; Evans v. International Life Ins. Co. 252 P. 266; DeFord v. Ins. Co., (Colo.) 256 P. 317; Duffy v. Ins. Co., (Ia.) 139 N.W. 1087; Kennedy v. Mut. Ben. Life Ins. Co., (Mont.) 205 F. 677; 1 Cooley's Briefs on Insurance (2nd Ed.) 730. The jury having passed upon the question of delay in acting upon the application, their finding will not be disturbed on appeal, it being amply supported by evidence.

John J. Spriggs, in reply.

The answers were filled in by the examining physicians and were not the answers of the applicant;...