Schwarzbach v. Ohio Valley Protective Union.

• Decision Date: 04 April 1885
• Citation: 25 W.Va. 622
• Parties: Sophia Schwarzbach et al v. Ohio Valley Protective Union.
• Court: West Virginia Supreme Court

25 W.Va. 622

Sophia Schwarzbach et al

v.Ohio Valley Protective Union.

Supreme Court of Appeals of West Virginia.

Submitted September 20, 1883.

Decided April 4, 1885.

1. A court ought not to exclude all the plaintiff's evidence from the jury on the defendant's motion, unless regarding the defendant as though he was a demurrant to the plaintiff's evidence, the court would find, for the demurrant, (p. 641.)

A suit is brought by the wife and children on a life-policy issued on the life of a man for their benefit; they prove the issuing of the policy sued upon by the defendant; and that it was issued for the benefit of plaintiffs; that the man insured died more than ' six months before the bringing of the suit; that the proof of liis death required by the policy to be delivered ninety days before the policy should be payable was delivered to the defendant more than ninety days before the suit was brought; that more than a month before the suit was brought the defendant refused to pay the policy when called upon by the plaintiffs to do so, and did so without making any objection to the proofs of death of the person whose life was insured, but the plaintiffs did not produce proofs of the death, which had heen delivered to (he defendant, though they could have produced them, and did not show that they had offered to deliver up the policy on payment of the amount to the defendant, the policy requiring the payment to be made after proof of the death of the insured upon receipt and surrender of the policy. Held:

2. On motion by the defendant to exclude the plaintiffs' evidence, this being all of it, the court did not err in overruling the motion (p. 642.)

3. In such a suit, the defendant having on demand of the plaintiff produced the proofs of the death of the insured, the court may properly allow the plaintiff to read to the jury the endorsements on the back of such proofs for the purpose of showing when they were received by the defendant, without requiring the plaintiff to read to the jury the proofs of death, (p. 848.)

4. If declarations in such cases were made by the insured as to his having had at some previous time a severe attack of sickness, in contradiction of his statement in the application for the policy, whether these declarations were made before or after the issuing of the policy being mere hearsay evidence, they are inadmissable as evidence against the plaintiffs, (p. 646.)

5. Though the policy provides for the amount named being paid upon the receipt by the defendant of the policy, still, if the defendant positively refuses to pay the policy because unjust, the plaintiffs could sue upon it and recover without proving that they offered to surrender the policy on its payment, (p. 648.)

6. A question asked of the examining physician and of a man engaged in the insurance-business as experts, as to what would be the character of the risk of a man's life, if within three months hehad a hemorrhage 61 the stomach, was properly not allowed to be put or answered, (p. 861.)

7. If the answers of the insured to the questions propounded to him

on the application, which are made a part of the policy, are by the1 policy warranted to be true, this removes their materiality from the consideration of the jury; and if any of the answers are false in fact, the policy is thereby forfeited, though the answers were made in perfect good faith, (p. 652.)

8. But in determining whether the answers by the insured in the

application are warranties or representations, the court leans in favor of construing the policy as making them representations rather than warranties; and if a portion of the policy or application would indicate them to be warranties, but another portion of the application shows, that they were to be regarded as representations, the answers to these questions will not be regarded as warranted to be true. (p. 653.)

9. Though the policy be construed as not warranting the truth of the answers of the insured, yet if these answers to specific questions are misrepresentations, the policy will be avoided, whether the court or jury regard the answers as material or not; for the parties by putting and answering such questions have declared, that they regarded them as material, (p. 655.)

10. But a false answer to a question, in order to be such a misrepresentation as will forfeit a policy, must be fraudulently false, that is in making the answer the insured must be guilty of actual fraud or legal fraud. By actual fraud is meant an intention to deceive j but legal fraud may exist, where there is no intention to deceive* as where the insured states in his answer, that he knows personally, that his answer is true, when it really is not true, or when the answer contains a statement which from its nature the insurers must necessarily regard as made on the personal knowledge of the insured, which statement is false, in both these cases the insured is guilty of a legal fraud, which will forfeit the policy, though the false statement was made without any intent to deceive but was the result of carelessness or forgetfulness. (p. 655.)

11. But if the answer is such, as must have been made not on the personal knowledge of the insured but upon his best judgment and belief, as that he wras of "sound body," and it be untrue, it will still not forfeit the policy, if the answer was made in perfect good faith, and the insured had no suspicion, that he was unsound of body, though it be afterwards shown that he had then a fatal internal disease, of which he afterwards died. Perfect good faith is all that is required in such a case. (p. 656.)

12. If an agent of an insurance company tills up the answers of the insured in a printed form of application furnished to the agent by the insurance company and procures the insured to sign such application, and in this application the agent has filled up an answer to a question, which he never propounded to the insured, and the insured trusting to this agent never read the application, and did not know, that it showed any such question to have been put or answered, though he may have had an opportunity of reading the application either before or after ho signed it, yet If such answer to such question so inserted in the application without the knowledge of the insured be false, it cannot operate as a forfeiture of the policy, as the making of such answer under these circumstances will not be regarded as the answer of the insured but as the act of the insurance company by its agent, (p. 661.)

13. If, when an insurance company issues a policy, it knows certain facts, which are material to the risk taken, it cannot claim a forfeitureof the policy because of the existence of these facts, though the insured in his answer to questions may have stated that such facts did not exist. (p. 665.)

14. If after the issuing of a policy certain facts become known to an insurance company, which, under the terms of the policy it has issued, would operate as a forfeiture of the policy, and the company, after it hasacquired the knowledge4 of these facts continues to receive premiums from the insured or to levy assessments on him and to receive payment of these assessments from the insured, such conduct of the company will estop it from claiming, that such facts so known to it operate as a forfeiture of the policy, (p. 666.)

15. If a life-policy contains a provision, that the amount ot the insurance shall be payable ninety days after the proof of the death of the insured is delivered to the company, and a suit is brought on such policy under chapter sixty-six of Acts of 1877, or under chapter seventy-one of Acts of 1882, section sixty-one, et scq., and the defendant fails in his statement of defenses to state that he relies upon the failureof the plaintiffs to furnish these proofs of the death of the insured to the defendant before suit was brought, still the plaintiffs can not recover without proving, that they furnished these proofs of the death of the insured as required by the policy; for this constitutes a part of the plaintiffs' case, and without this proof they do not make out a prima facie case; and it does not constitute a matter of defence and therefore need not be stated in the statement of the defences filed by the defendants, (p. 667.)

Green, Judge, furnishes the following statement of the case:

This was an action of assumpsit brought by Sophia Schwarzbach, widow of (Jeorge Schwarzbach, and his infant children, John, Francisca, Gustavus and Louis, suing by their mother as their next friend, in the municipal court of Wheeling against the Ohio Valley Protective Union, a life insurance company of Wheeling. The declaration was that authorized by chapter sixty-six of Acts of 1877, and was upon the liabilities which were as follows:

" No. 2, 162. $2,000. "(Chartered July 4, 1878, Principal office, Wheeling, W. Va.)

" In consideration of the representations, agreements and warranties made by George Schwarzbach of Wheeling, county of Ohio, State ot West Virginia, in his application dated October 28, A. D., 1880, and the sum of ten dollars in hand paid and ten dollars to be paid yearly for four years after this date, and four dollars to be paid annually thereafter during his membership, and the further sums to be paid on death-assessments, as they become due on the death of members occurring after the date hereof, the Ohio Valley Protective Union issues to him this certificate of membership, with the following agreements:

" Ninety days after due proof and approval of the death of said George Schwarzbach, he having complied with the conditions of membership, the Ohio Valley Protective Union t will pay to Sophia Schwarzbach and children, his wife and children, or legal representatives, at the office of said association, in Wheeling, West Virginia, the sum of $2,000.00, less any portion remaining unpaid of the first four annual payments, upon due receipt and the surrender of this certificate. This certificate is...