19 Ohio C.C. (n.s.) 554 | Ohio Ct. App. | 1914
This is a proceeding in error to reverse the judgment of the court of common pleas of this county, in favor of the defendant in error, Mabel May Ford, on a policy of life insurance issued by plaintiff in error on the life of Moses Ford, husband of the defendant in error. The facts in the case as shown on the trial are substantially as follows :
On the 23d day of June, 1910, C. F. McFadden, agent of the insurance company, went into the harvest field of Moses Ford and solicited him to
The. insurance company’s policy of insurance No. 1402 was executed to Moses Ford on the 14th day of July, 1910, and sent to McFadden, agent of the company, who received it on the 15th day of July, 1910. He did not deliver it to Moses Ford, but returned it to the company, upon the advice of the president, July 18, 1910. McFadden received the policy for the sole purpose of delivery, but did not deliver it for the reason that at the time he received it the said Moses Ford was ill with an acute malady, typhoid fever. The note given by Ford was returned to him the day of his decease, to-wit, July 19, 1910. Proofs of death were made out in regular form. Moses Ford, it appears, was taken ill in the evening of July 7, which illness developed into what subsequently proved to be typhoid fever. In the evening of the 7th of July he called in his family physician, who happened to be Dr. Heely, the medical examiner of the insurance company. Nothing was said about the insurance policy, and, so far as the record shows, Moses Ford had no knowledge that the report of his medical examination had not been promptly sent to the company on the day he was examined and a policy issued to him thereon. Mabel May Ford, the beneficiary named in the policy, brought suit on the policy in the court of common pleas of this county, making the necessary averments to recover thereon.
The answer of the company, so far as the questions we shall discuss are concerned, was a general denial. The jury returned a verdict in favor of the
Counsel for the insurance company, in argument to this court, insisted that it was the duty of Moses Ford at the time he was taken sick, on the evening of the 7th of July, and thereafter during his illness, to notify the insurance company of the fact of such illness and change in his physical condition, and that because he did not do so there was such fraudulent concealment on his part that avoided the policy.
In answer to this it might be urged, first, that no such issue is made by the answer; that if the plaintiff in error intended to rely upon such facts as claimed in this case, it was its duty to set up same in its answer. Upon that question we think the case of Moody v. Insurance Co., 52 Ohio St., 12, is decisive, and it is supported by the following authorities: Port Blakely Mill Co. v. Hartford Fire Ins. Co., 50 Wash., 664, 97 Pac. Rep., 781; Taylor v. Modern Woodmen of America, 42 Wash., 304, 84 Pac. Rep., 867, and see authorities cited on page 869; Bliss on Code Pleading (3 ed.), Sec. 356a; Kahnwiler v. Phoenix Ins. Co., 67 Fed. Rep., 483.
But was there any fraudulent concealment in this case, or, in other words, was it the duty of Moses Ford to notify the company after he was taken ill of the change in his physical condition? The rule
“Where, pending negotiations for a contract of life insurance, a material change in the condition of the applicant’s health occurs, such as would influence the judgment of the insurer in accepting or declining the risk, the applicant is under obligation to make disclosure of the fact.”
Numerous authorities are cited in support of that rule. Perhaps the leading one is Piedmont & Arlington Life Ins. Co. v. Ewing, Admr., 92 U. S., 377, the syllabus of which is as follows:
“While negotiations were still pending between an agent of the company and the applicant, touching the precise terms of a contract of insurance, the amount of the premium, and the mode of payment, a friend paid the premium, but concealed from the agent the condition of the applicant, who was then in extremis, and die.d in a few hours. The agent, in ignorance of the facts, delivered the policy. Held, That no valid contract arose from the transaction.” '
But Mr. Justice Miller, on page 382, very clearly distinguishes that case, we think, from the one we have here in the following language: “This case differs.very widely from those cited, in which a delay in payment has been treated by the court as waived. All such cases proceed on the ground that a valid agreement as to the terms of the contract has been made.”
What part of the contract between Moses Ford
That question was disposed of within a few days by the medical examination made by the medical examiner of the company, and Ford was found to be in an insurable condition of health, so that when that examination was made the entire contract was concluded and closed and the minds of the parties met, and all that remained to be done was for the insurance company to issue the policy, which it did. This, we think, is settled in the case of Insurance Co. v. Higginbotham, 95 U. S., 380, where the following principle is announced: "Held, That the representation of the insured as to the condition of his health on the 1st of October, when he applied for the reinstatement of his policy, and paid the premium, were not continuous until the 14th of that month, and that the contract was consummated on the day when the premium was paid.”
See also DeCamp v. New Jersey Mut. Life Ins. Co., 7 Fed. Cases, 313. case No. 3719, 3 Ins. Raw J., 89. In Southern Life Ins. Co. v. Kempton, 56 Ga., 339, we find a leading case on this subject.
“In such a case as this, the principle that any change in the health of the applicant between the time of the application and of the issuing of the policy, would relieve the insurance company from consummating the contract, does not apply; the delivery to the agent, under the facts, was a consummation of the policy, and that, with the other facts proven, show a consummation- of the contract.”
In Keim v. Home Mutual Ins. Co., 42 Mo., 38, 97 Am. Dec., 291, it is said: “It is laid down by Angelí that, 'when the negotiation for insurance is so far completed that nothing remains to be done but to deliver the policy, corresponding with the terms and date of application, should a loss occur before the execution of the policy a court of equity would relieve the assured.’ ” 1 Duer on Insurance, 66, Sec. 10.
In Baldwin v. The Chouteau Ins. Co., 56 Mo., 151, 17 Am. Rep., 671, we find the following: “In May on Insurance, Sec. 44, it is said, that the agreement for insurance is complete when the terms thereof have been agreed upon between the parties, and the reciprocal rights and obligations of the insurer and the insured, date from that moment, without reference to the execution and delivery of the policy, unless these two elements are embraced within the terms agreed upon.”
“Where, after oral contract of insurance, the premium is accepted and the policy delivered, it relates back to the making of the oral contract, and
We also cite Gordon v. U. S. Casualty Co., 54 S. W. Rep., 98, a Tennessee case of 1899; Lishman v. Northern Maritime Ins. Co., 44 L. J., C. P., 185, L. R., 10 C. P., 179, 32 L. T., 170, an English case. See also Flint v. Ohio Ins. Co., 8 Ohio, 501.
We find none of the cases cited by counsel for plaintiff in error conflicts with the rule we have attempted to discuss. In Cable v. U. S. Life Ins. Co., 111 Fed. Rep., 19, the policy had a clause that it should take effect only upon payment of the first premium and “delivery of policy during my lifetime in sound health and insurable condition.” Cable had previously declined to accept the policy. In Mutual Life Ins. Co. v. Pearson, 114 Fed Rep., 395, it was provided in the policy that the insurance shall not take effect “until the first premium shall have been paid during my continuance in good health.” Pearson was taken sick January 6. January 7 the first premium was paid, 'the company not knowing of his illness, and on January 8 he died. The question is on demurrer, on equity jurisdiction of the court to cancel policy.
In Thompson v. Travelers Ins. Co., supra, the condition of the policy was that “This policy shall not take effect until the first premium is actually paid by the insured in good health.” It is not claimed in this case that the assured was not in good health at the time he signed the apolication or at the time he was examined by the medical exam
Again, the medical examiner was appointed by the company to ascertain and report the physical condition of the applicant, Moses Ford. He was the only representative of the company in that regard known to the deceased, so far as the record shows. Whatever disclosures as to the condition of his health required to have been made by him should have been made to the medical examiner. This is manifestly true at the time of the examination. On the 7th of July the medical examiner sent his report of the examination of Ford to the company. On the same day he visited Ford and found him threatened with typhoid fever and was thereafter his attending physician until his death. It does not appear whether the deceased said anything to the doctor about his insurance policy or of his making any additional report to the company in regard to his sickness, but what need therefor? The doctor was the medical examiner of the company and the direct representative of the company to ascertain and report the physical condition of Ford, and he knew better than did Ford the prognosis of his disease. Being the agent of the company to report as to the health of applicants for insurance in the company, and especially as to Ford’s health, we think his knowledge of Ford’s illness must be imputed to the company; that the company must be held to know what their agent knew and failed to report.
The judgment of the court of common pleas will be affirmed.
Judgment affirmed.
