Reserve Loan Life Ins. Co. v. Isom
| Decision Date | 08 January 1918 |
| Docket Number | 8276. |
| Citation | 173 P. 841,70 Okla. 277,1918 OK 16 |
| Parties | RESERVE LOAN LIFE INS. CO. v. ISOM. |
| Court | Oklahoma Supreme Court |
On Rehearing, April 16, 1918.
Second Petition for Rehearing Denied July 30, 1918.
Syllabus by the Court.
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, and misleading and made in bad faith.
Proofs of death furnished an insurance company, while not conclusive evidence of the facts therein stated and subject to be explained or to proof that such statements are incorrect furnish some evidence of the facts therein stated and are prima facie evidence in behalf of the insurer.
Where the proof of death furnished an insurance company shows the age of the deceased to be greater than stated in the application for the policy, such proof of death furnished some evidence as to the age of the insured, and the insurer is entitled to have the question submitted under proper instructions to the jury, who may give to such evidence the weight to which they think it entitled under the circumstances of the case.
Even though the defendant offers no evidence in rebuttal, where defendant has denied plaintiff's case and the evidence introduced on the part of the plaintiff is of such a nature that men of ordinary intelligence might draw different conclusions therefrom, it is error for the court to instruct a verdict for the plaintiff.
On Rehearing.
Additional Syllabus by Editorial Staff.
Where the insurer was not entitled to offer evidence until insured's case was closed, and, when the insured rested the insurer stood on its demurrer and offered no evidence, it could not complain that insured was allowed to remit to amount which she would be entitled to recover under the state of the evidence most favorable to it.
Commissioners' Opinion, Division No. 1. Error from District Court, Cleveland County; F. B. Swank, Judge.
Action by Thelma Aline Isom a minor, by Mrs. C. G. Isom, guardian, against the Reserve Loan Life Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed on condition, and otherwise reversed and remanded for new trial.
W. A. Briggs, of Oklahoma City, and Guilford A. Deitch and Frank G. West, both of Indianapolis, Ind., for plaintiff in error.
Williams & Luttrell, of Norman, for defendant in error.
This is an action instituted in the district court of Cleveland county by the defendant in error, hereinafter styled the "plaintiff," against the plaintiff in error, hereinafter styled the "defendant," to recover on a policy of life insurance. The defendant denied liability upon the ground that the insured made false statements in his application for the policy as to having consulted a physician prior to the application, and that the insured in the application made false statements as to his age. At the conclusion of the evidence of the plaintiff, the defendant demurred thereto, which demurrer was by the court overruled; the defendant saving an exception. The defendant then requested an instructed verdict, which request was refused by the court; the defendant excepting. Upon the motion of the plaintiff the court instructed the jury to return a verdict for plaintiff for the amount of the policy, to which defendant excepted.
The defendant complains of the overruling of its demurrer to the evidence of plaintiff and its motion for a directed verdict. It also complains of the action of the trial court in instructing a verdict for plaintiff. All of the assignments of error may be considered together.
The policy sued upon contains the following provision:
The guardian of plaintiff, the wife of the insured, upon cross-examination testified that the insured had a year or two before making application for the policy consulted two physicians for a slight indisposition. Her evidence showed that the insured while consulting the physicians went about his business as usual. The defendant contends that this evidence is sufficient to avoid the policy because of the falsity of the representations made in the application by the insured. Counsel for defendant in arguing this proposition treat the statements made by the insured in the application as warranties and not as representations. If the statements contained in the application for the policy in controversy could be construed as warranties, we have grave doubt whether such a consultation with a physician as was testified to by the guardian of plaintiff, for slight and temporary indisposition, would be in contemplation of the question answered by the insured in the application for the policy. The authorities upon this question are collated in a note to Metropolitan Life Insurance Co. v. Brubaker, 18 L. R. A. (N. S.) 362. It appears that the authorities are in conflict, but that a very respectable number of courts of last resort support the view that the question propounded in the application for life insurance as to consultation with a physician does not contemplate slight and temporary indisposition, and that a statement that the insured had not consulted a physician is not false within the contemplation of the application because of the consultation with a physician for a slight ailment. It is, however, unnecessary for us to determine to which of the divergent opinions upon this proposition we would adhere, and we do not determine that proposition. The policy itself construes the statements made by the insured in his application as representations and not warranties.
This court, in Continental Casualty Co. v. Owen, 38 Okl. 107, 131 P. 1084, in construing the effect of statements in an application which were representations and not warranties, holds that the burden is upon the insurer to show that such statements are willfully false, fraudulent, and misleading. Mr. Justice Kane, who delivered the opinion of the court, says:
"As stated elsewhere in this opinion, under our statutes such statements must be construed as representations, and in order for misrepresentations in relation thereto to avail the insurer as a defense it must show that they were willfully false, fraudulent, or misleading."
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