Williams v. Mutual Life Ins. Co. of New York

• Decision Date: 10 October 1921
• Docket Number: 4447.
• Citation: 201 P. 320,61 Mont. 66
• Parties: WILLIAMS v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Montana Supreme Court

201 P. 320

61 Mont. 66

WILLIAMS v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 4447.

Supreme Court of Montana

October 10, 1921

Appeal from District Court, Beaverhead County; Jos. C. Smith, Judge.

Action by Ruby R. Williams against the Mutual Life Insurance Company of New York. Judgment for plaintiff, new trial denied, and defendant appeals. Reversed and remanded, with directions.

Charles R. Leonard and F. C. Fluent, both of Butte, for appellant.

Rodgers & Gilbert, of Dillon, for respondent.

REYNOLDS J.

This action was commenced to recover of defendant the amount alleged to be due upon an insurance policy upon the life of the deceased husband of plaintiff. Trial was had before a jury, which rendered a verdict in favor of plaintiff. Judgment was entered in accordance with the verdict. Motion for new trial was made and overruled. Defendant has appealed from the judgment and from the order overruling the motion.

On January 10, 1917, the insured, Oscar H. Williams, made application to the defendant company for insurance upon his life. On January 23, 1917, he passed the medical examination and on February 5, 1917, the policy was issued. Insured died on the 28th of June, 1917, as a result of tubercular laryngitis.

The defendant admits the execution of the policy, but makes two separate affirmative defenses: First, that the policy was procured through fraud; and, second, that insured was not in good health at the time of payment of first premium and at the time of the delivery of the policy, the same being alleged as conditions precedent to the policy taking effect. In our disposition of the case, it is only necessary to consider the first one of these defenses.

The policy contains this paragraph:

"This policy and the application therefor, copy of which is indorsed hereon or attached hereto, constitute the entire contract between the parties hereto. All statements by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement of the insured shall avoid or be used in defense to a claim under this policy unless contained in the written application herefor and a copy of the application is indorsed on or attached to this policy when issued."

At the time of the examination of insured, he was required to make answer to a number of questions submitted by the medical examiner as a part of the application. In making answer to some of these questions, he stated that the only illnesses diseases, injuries, or surgical operations that he had had since childhood were a fracture of the right thigh in 1904, a slight cold in September, 1916, of a duration of only from two to three days, and with complete recovery in September 1916, an injury to right eye in 1899. He also stated that the only physician who had prescribed for or who had treated him, or with whom he had consulted in the past five years, was Dr. McMillan, of Dillon, in September, 1916, for the cold above mentioned, and that he was at the time of his examination in good health. The undisputed testimony shows that these answers of insured did not correctly state the facts. It appears conclusively that he had received treatments not only from Dr. McMillan, but also from Dr. Thorkelson in September and October, 1916, and was present at a consultation over his case between these two doctors and Dr. Jones at about the same time; that the treatments he received were not for "cold" as that term is commonly understood, but for a serious ulcer in the throat. At the consultation between Drs. Thorkelson, McMillan, and Jones, the question was discussed as to whether or not this ulcer was syphilitic or tubercular in nature. At that time a smear was taken from his throat and...