164 N.W. 50 | N.D. | 1917
Lead Opinion
The action is one brought to recover upon an insurance policy upon the life of Mary E, Donahue. The complaint, after alleging that the defendant is a foreign corporation duly authorized to transact business in the state of North Dakota, further states in substance that on the 30th day of April, a. d. 1913, in consideration of the payment of the annual premium of $75.78, and of the payment of a like amount upon each 30th day of April thereafter until twenty full premiums shall have been paid, or until the death of Mary E. Donahue, said defendant made, executed, and delivered its certain policy of insurance in writing to said Mary E. Donahue on her life, a true and correct copy of which said policy is hereto attached marked “exhibit A” and made a part of this complaint; said defendants therein duly admitted the receipt of the said first annual premium, and by the terms of said policy further promised and agreed to pay, at the home office of the said company in the city of New York, upon receipt at said home office of due proof of death of said Mary E. Donahue, the sum of $2,500, less any indebtedness on said policy to said company, and any unpaid portion of the premium for the then current policy year, upon the surrender of said policy properly receipted, — to her, said Mary E. Donahue’s executor, administrator, or assigns.
That on the 24th day of July, 1913, the said Mary E. Donahue died intestate in the city of Williston, Williams county, North Dakota, and was resident in said county, and leaving estate therein. On the 28th ■day of July, 1913, letters of administration of the estate of Mary E. Donahue, deceased, were duly issued to Joseph M. Donahue, who duly qualified as such administrator. That on or about the 10th day of
The amended answer interposes a general denial of the allegations in the complaint, except certain admissions. Defendant further, in its answer, by way of defense, admits the making’ of the application for the insurance on the 30th day of April, 1913, and further alleges that such application contained the following paragraph, alleging that the same was expressly stipulated and agreed to by the said Mary E. Donahue.
“This application is made to the Mutual Life Insurance Company of New York. All the following statements and answers, and all those that I make to the company’s medical examiner, in continuation of this application, are true, and are offered to the company as inducement to issue the proposed policy, which shall not take effect unless and until the first premium shall have been paid during my continuance in good health; except in the case a binding receipt shall have been issued as hereinafter provided.”
“The defendant, further answering plaintiff’s said complaint, alleges that in consideration of the said application signed by the said Mary E. Donahue, a copy of which is hereto attached and annexed and marked “exhibit A” and hereby referred to and hereby made a part hereof, and in consideration of the terms and conditions thereof, the said defendant wrote the policy of insurance number 2,068,902, which was dated the 30th day of April, 1913, and which said policy of insurance stated that, fin consideration of the annual premium of seventy-five and 78-100 dollars, the receipt of which is hereby acknowledged, and the payment of a like amount upon each 30th day of April hereafter until twenty full years’ premiums shall have been paid or until the prior death of the insured, promises to pay at the home office of the company in the city of New York upon receipt at said home office of due proof of the death of Mary E. Donahue, of Williston, county of Williams, state of North Dakota, herein called the insured, $2,500, less any indebtedness hereon to the company and any unpaid portion of the premium for the then current jjolicy year, upon surrender of this policy properly receipted, to her executors, administrators, or assigns:
“And defendant further alleges that when the said policy was written there was attached thereto and delivered therewith a copy of said application, and that said application became and-was a part of said written policy. “Defendant answering said complaint alleges that said policy was delivered to Joseph H. Donahue, the husband of the said Mary E. Donahue, and a check for the amount of the first premium was then delivered to the defendant by the said Joseph H. Donahue and signed by him, and that at the time of the delivery of said policy to said Joseph H. Donahue, and of the payment of the premium on said policy, the said Mary E. Donahue was not in good health, and said defendant did not know that said Mary E. Donahue was not in good health at said time; that said policy of insurance never took effect as a binding contract of insurance.
“That the said defendant relied upon the stipulations and terms of said application, and that said policy of insurance would not have been delivered or the first premium thereon accepted if it had been known that the said insured was not at said times in good health.”
The facts in the case are substantially as follows: On the 30th day of April, 1913, the defendant made, executed, and issued its certain policy of insurance to Mary E. Donahue in consideration of the payment of the premium of $75.78, and the payment of a like amount on the 30th day of April of each year until the full premium had been paid or until the death of Mary E. Donahue. The defendant in its policy admitted the receipt of the first annual premium provided for by the terms of the said policy. Said policy provided by its terms that said defendant insurance company agreed to pay on receipt of due proofs of death of Mary E. Donahue the sum of $2,500, less any indebtedness on said policy to said defendant, and any unpaid portion of the premium for the then current policy year, upon the surrender of said policy properly receipted. Said policy of insurance was delivered to said Mary E. Donahue on the 6th day of June, 1913. Mary E. Donahue showed no signs of ill health, and made no complaint thereof until the 7th day of June, 1913. Erom April 30 to June 7, 1913, she continued to perform her regular daily duties, assisting her husband in his shop and business in the city of Williston. That on April
In this action plaintiff is seeking to recover on a life insurance policy issued by the defendant to one Mary E. Donahue, covering her life, which policy contained covenants that the estate of Mary E. Donahue would be paid the sum of $2,500 upon due proof of her death being received at the home office in the city of New York. One of the principal and most important questions to be decided in this case is, When did such policy of insurance take effect ? The application for such insurance is dated April 30, 1913, and the policy is of the same date. The policy was issued in the sum of $2,500, the animal premium being $75.78. A receipt for the first premium was contained in the policy itself, and such policy in its very inception uses the following language: “The Mutual Life Insurance Company of New York, in consideration of the annual premium of $75.78, the receipt of which is hereby acknowledged, and of the payment of a like amount upon each 30th day of April hereafter until twenty full years’ premiums shall have been paid, or until the prior death of the insured, p-mmisp.fi to pay at the home office of the company in the city of New York, upon receipt at said home office of due proofs of the death of Mary E. Dona
Section 6515 of the Compiled Laws of 1913 reads as follows: “Receipt for premium, effect of. An acknowledgment in a policy of the receipt of premium is conclusive evidence of its payment so far as to make the policy binding, notwithstanding any stipulation therein that it shall not be binding until the premium- is actually paid
The policy under consideration contains such a receipt as is described in said § 6515. It follows, therefore, that the exact point of time when such policy went into effect and became binding as a contract is determined by the acknowledgment in the policy itself of the first premium, the policy having thereafter been delivered. Whether the premium was actually paid in money at such time is immaterial, and where it was shown to have actually been paid at a later time is immaterial so far as determining the point of time when the policy actually became effective as a contract. Keeping in mind the date of the policy, to wit, April 30, 1913, the receipt in the policy acknowledging receipt of the first premium on such day, and the statute, § 6515, which provides that such an acknowledgment of the premium in the policy is conclusive evidence of the payment of such premium so far as making the policy binding, we cannot otherwise hold than that the policy of insurance under consideration, having been after the date thereof delivered, became effective and binding upon all parties to the contract on the 30th of April, 1913. Section 6515 is plain. Its provisions and the meaning thereof cannot be misunderstood. It says in plain and unmistakable language, “An acknowledgment in a policy of the receipt of premium is conclusive evidence of its payment so far as to make the policy binding, notwithstanding any stipulation therein that it shall not be binding until the premium is actually paid.” Section 6515 was interpreted in the case of Harrington v. Mutual L. Ins. Co. 21 N. D. 447, 34 L.R.A.(N.S.) 373, 131 N. W. 246, wherein the court held that “the company cannot be permitted to show that the actual date of the issuance of a policy of life insurance ivas of a later date than the date recited in the contract, where the policy contains an acknowledgment
Having disposed of this question in the manner stated, considering the state of the testimony and the record, there really remains but little to discuss. All of the testimony relating to the health and physical condition of the insured on or-about the 6th, 7th, or 8th day of June, 1913, would almost appear to be irrelevant and immaterial, being so far distant and subsequent to the date when the policy actually took effect, the policy having become binding and effective as a contract of insurance between the parties on the 30th day of April, 1913. It appealing, therefore, that there is no testimony to show the insured was not in good health on the 30th day of April, 1913, and no proof of any fraud on her part in obtaining such contract of insurance, and having been delivered, the contract became at that date binding upon all parties to the contract, and the company became liable to the beneficiaries of such policy for the full amount thereof upon the death of Mary E. Donahue, her death having been from a natural cause and not by suicide, and while the policy was in full force and effect.
In order to dispose of all questions concerning the health of the insured at the time the policy was issued on April 30, 1913, we conclude that the testimony clearly shows that on the 30th day of April, 1913, the insured was not suffering from typhoid fever. There is no positive testimony anywhere that she ever actually had typhoid fever. There are opinions based either upon subjective or objective examinations, or the Wydle test, but the testimony is not of such conclusive nature as to convince one that the insured ever was afflicted with typhoid fever. But even if it be conceded for the sake of argument that she was, it was, if at all, not to exceed eight- or ten days prior to the 7th day of June, or thereabouts. In other words, if she ever became infected with typhoid fever, it was many weeks — a long time in fact — after the policy became effective on the 30th day of April, 1913, and therefore has no bearing upon the determination of the liability of the defendant.
The human body is a complicated structure, and its many parts are most delicately adjusted and related, and it is subject to many hundreds of different ills. The ordinary person of average intelligence has but. slight knowledge of their own body, and know but very little about any kind of disease that may affect the human body, and as a rule cannot, tell if they are afflicted with any disease unless they are conscious of actual pain or there be some external manifestation which will excite their suspicions, and in many different kinds of diseases in their incipiency it is difficult to know of their presence. The disease may be in the body for days, sometimes weeks, even months, before a person may know its actual existence; so that a person in an insurance application, answering any question concerning any matter regarding their health or the condition of the body, merely expresses an opinion as to the matter about which he is asked, and such opinion is merely a representation that his statement is true to the best of his knowledge. On the other hand, the physician is trained and skilled in the detection and treatment of diseases; and where, as in this case, he makes the examination of an applicant for insurance, he is acting as the agent of the company, and his examination of the applicant is for the benefit and use of the company. He is afforded every opportunity to determine whether or not the applicant is in a state of good health. As such physician he uses the thermometer to determine the temperature, the stethoscope to determine the heart action, and determines the condition of the respiratory organs. He makes the blood test. He has other instruments by which he may determine arterial pressure or arterial sclerosis. He has other instruments by which he determines the range of vision, not only to test the eyesight, but possibly to discover whether or not a tumor of the brain may be making an insidious approach, and in a hundred other ways may use methods, instrumentalities, and his technical knowlege to determine whether or not diseases may be present in one’s body at the time of examination. Of how much value, then, can be the statements of the persons themselves, they having little or no knowledge of disease or the functions of the body> of the heart, lungs,
If there is any testimony in this case which may be claimed to show to some slight extent that the insured in this case, at the time of the signing of such application for insurance and at the time that she answered the questions in such application, was or might have been in a delicate condition, her answer that she was not in such condition is merely the expression of opinion, and if made in good faith, believing that she was not in such condition, even if such answer was not true, it would not avoid the policy or the liability of the company if the applicant in good faith believed her answer to be true. The contract of insurance must receive a reasonable interpretation, and this is true of the answers of the applicant in his application for insurance. His answers must not be so construed as to compel him to be his own insurer. The liberal rule, and we believe the sound rule, which we have been discussing with reference to the application and the answers to the questions therein, that all such questions and answers should whenever possible be considered representations, and not warranties; that the answers are but expressions of opinion, — finds much support in a very respectable line of authorities, among which may be mentioned the Globe Mut. L. Ins. Asso. v. Wagner, 188 Ill. 133, 52 L.R.A. 649, 80 Am. St. Rep. 169, 58 N. E. 970; Fidelity Mut. L. Ins. Asso. v. Jeffords, 53 L.R.A. 193, 46 C. C. A. 377, 107 Fed. 402; Rasicot v. Royal Neighbors, 18 Idaho, 85, 29 L.R.A.(N.S.) 433, 138 Am. St. Rep. 180, 108 Pac. 1048; Modern Woodman Acci. Asso. v. Shryock, 54 Neb. 250, 39 L.R.A. 826, 74 N. W. 607; Ætna L. Ins. Co. v. Rehlaender, 68 Neb. 284, 94 N. W. 129, 4 Ann. Cas. 251. It has been held in the following cases that such statements by the assured were at best but expressions of opinion, and deemed to be representations rather than warranties, and in the absence of fraud, gross negligence, or bad faith, would not avoid the policy, though the statements were expressly de
Adverting to the appellant’s contention that the policy was executory, and that the. liability of the insurer depended upon the actual •condition, and not merely the appearance of the insured when the first premium was paid, it is.held that the contract ceased to be executory ■on- the 30th day of April, 1913, and became, upon its delivery, a binding contract upon all parties to it from April 30, 1913; and most of the testimony concerning good health being in a very remote period from April 30, 1913, it is irrelevant and immaterial, only one element of such testimony having any force or effect, and that related to the possibly delicate condition of the insured at the time of the application, which contention has been disposed of.
The case of Thompson v. Travelers’ Ins. Co. 11 N. D. 274, 91 N. W. 75; second appeal in 13 N. D. 444, 101 N. W. 900, is not in point in some very material matters. In that case there apparently was no receipt in the policy itself of the first premium, which receipt under •our statute, .as we have seen, makes the policy upon its delivery a binding contract from its date, and makes the policy binding notwithstanding any stipulation therein that it shall not be binding until the premium is actually paid, so that it must be considered in the case at bar that the sickness of the insured commenced more than two months after the policy became a binding obligation on all parties, and more than two months after the time when, by the receipt in the policy and the law governing the same, the premium was considered to have been paid, at least for the purpose of making the policy binding, notwithstanding that the actual payment of the premium might have been at a later daté.
In the case at bar the contract of insurance consists of a policy and the application for the insurance. In the caption of the application the
The judgment appealed from is affirmed, with costs.
Concurrence Opinion
(concurring specially). I concur fully in an affirmance of the judgment and in the principles of law enunciated in the syllabus in this case, for the following reasons: The application for the insurance policy involved herein expressly provided that “all statements made by the insured shall, in the absence of fraud, be deemed representations, and not warranties.”
The sole defense is predicated upon the proposition that the insured made a false affirmative answer to the following question: “Are you now in good health ? ”
It is of course elementary that a party who asserts fraud has the burden of establishing the same by clear and satisfactory proof. The defendant, therefore, had the burden of proving the false and fraudulent character of the answer of the insured to the question under consideration. It wholly failed to sustain this burden.
The evidence shows that the insured at the time of the medical examination was in the best of health. The evidence further shows that the insured had never been pregnant before. Her mother (who lived with her), and her husband, both testified that they had no hint or suspicion
As to effect of honest mistake in answers as to health of insured, warranted by him to be true, see notes in 53 L.R.A. 193, and 15 L.R.A. (N.S.) 1277, from which it appears that, if the premium in fact is not paid, the acknowledgment of payment in the policy, so far as it is a receipt for money, is only prima facie, and the amount can be recovered, but, so far as the acknowledgment is' contractual, it cannot be contradicted so as to invalidate the contract.
On duty to notify insurer of facts which develop after submission of application, but before delivery of policy or certificate, see notes in 8 L.R.A.(N.S.) 983; and 39 L.R.A. (N.S.) 951.
On recital of payment of premium in policy of insurance, see note in 70 Am. St. Rep. 597.
On stipulation in life insurance policy as to payment of premium, see note ins 60 Am. Rep. 708.