89 W. Va. 221 | W. Va. | 1921
The plaintiff brought this suit to recover the indemnity provided in a policy of insurance' issued by the' defendant upon the life of her husband Harry Goodbar. To review a judgment in her favor for the amount of said indemnity this writ of error is prosecuted.
On the first day of' December, 1913, according to the plaintiff’s contention, and on the first day of January, 1914, ac
The defendant interposed to the declaration four defenses. The first asserted that the insured had committed suicide by taking bichloride of mercury within two years of the date of the issuance of the policy, and that because of a provision in the policy to the effect that in case of the suicide of the insured, while sane or insane, within two years from the date of the issuance of such policy, the limit of recovery would be the amount of the premiums paid, it was only liable for the sum of seven dollars, the amount actually paid by Goodbar as premium. The second defense is that the insured, at the time he applied for said insurance, made an application and appended thereto, over his signature, a statement that the representations made therein were true, and were offered to the company as representations upon which they might rely in issuing the said policy; that among the questions asked him in said application was: ' ‘ Have you ever had any illness, injury or disease other than stated by you above ?” That he had not theretofore indicated that he had had any disease or injury, and that the answer to the question was “No.” That in fact and in truth the insured had prior to that time suffered an injury which resulted in the loss of one of his feet, which fact he concealed from the defendant. Third, that he also represented in said written application that he had never applied to a company or agent for insurance without receiving a policy in the exact amount and of the kind applied for, when in fact and in truth within less than one year prior to' the issuance of this policy, and the making of this application, he had been rejected and refused insurance by two other companies. Fourth, that the policy provides that it shall continue in force only for the period actually paid for, and that no premium could
As before indicated, the evidence upon the question of delivery of the policy and waiver of the payment of the premium is conflicting. The agent says that he delivered the policy for examination upon condition that it would be returned if the premium was not paid within thirty days, and that at the time he so delivered it Goodbar signed a writing showing this understanding. This writing, however, is not produced. This agent admits that Mrs. Goodbar was present at the time of delivery. She testifies that when the agent came to deliver the policy he was advised that they did not have the money to pay the premium at that time; that he told them that he would deliver the policy and accept a note or due bill for the balance of the premium, and that this would put the policy in immediate effect; that he did deliver the same, and that he was paid two dollars in money and given a note or due bill by the insured, which note or due bill was not paid prior to Goodbar’s death. She says that the insurance company’s agent also promised on that occasion to endorse a note for them for a larger amount than the balance of the premium, upon which they could secure the money and pay off this due bill, and that she went to his office a day or two afterward to get him to endorse this note, but that he refused to do so. Upon this showing the jury, under the instructions of the court, found that the requirement as to
The next defense relied upon is that of suicide. One of the conditions of the policy is “In case of suicide, while sane or insane, within two years from the date on which this insurance begins, the limit of recovery shall be the amount of premiums paid thereon.” Goodbar died within a very few days after the issuance of the policy, the defendant insists that his death was caused by bichloride of mercury poisoning, self administered. That his death resulted from bi-chloride of mercury poisoning there would seem to be no doubt. Dr. Shafer, who attended him at this time,, testifies that this was so, and Dr. Steenbergen, who was called in consultation, is likewise positive that Goodbar’s death resulted from bichloride of mercury poisoning, and there is no effort to contradict the testimony of these witnesses, or to account for his death upon any other theory. It is stated by these doctors that when they told Goodbar that he had taken bichloride of mercury he denied it, but they attach no significance to this denial, expressing the view that they expected him to make this answer. There is no direct evidence as to how or by whom this poison was administered to the insured. It is within the realm of possibility that it was taken by mistake, or that it was administered to him by someone else innocently, or with a homicidal intent. There is no attempt to show that he procured the poison at any time previous to his death, or how it came into his possession, if in fact it ever did. The tenacity with which men cling to life is so great that suicide will not be presumed unless the state of facts under which death occurs practically excludes every other reasonable hypothesis, and the court so instructed the jury in this case. There is no indication that Goodbar
In the application for insurance the insured represented that he had never suffered any injury. It appears from the uncontradicted evidence that the insured at the time had only one foot, and the plaintiff, his wife, testified that the missing foot had been off for twelve or thirteen years. Prom this it satisfactorily appears that some twelve or thirteen years before the insured had suffered an injury which resulted in the loss of his foot. This representation is a statement of fact within the knowledge of the insured. It is in no sense an expression of opinion upon his part. As we have repeatedly held in cases like this, the company by asking and demanding answers to certain questions, and the insured, by making answers and asserting their correctness, agree as to their materiality, and make any false statement in regard to a matter within the insured’s knowledge ground for vitiating the policy. Of course, if the answer was such as only called for the opinion of the insured, and he gave an honest opinion, he could not be charged with a false representation. There is no opinion called for, however, so far as this question is concerned. It called for a statement from the insured of something that he knew, and his answer is coupled with an assurance upon his part that the defendant could rely upon the truthfulness thereof. The replication attempts to escape the effect of this false representation by asserting that the defendant, or its agent, knew the facts when the application was given. It suffices to say that this contention is. supported by no evidence whatever. On the contrary, it is
The next ground of defense is that the insured represented that he had never applied for and been refused insurance in any other company. This representation is likewise one of fact, and is material, and if false will avoid the policy issued upon an application containing it. 25 Cyc. 819; 14 R. C. L., title “Insurance” § 258; Bacon on Life and Accident Insurance, § 293. The facts proved on this issue are that on the 3rd day of December, 1913, Goodbar made an application for a policy of three thousand dollars in the Ohio National Life Insurance Company. This application was in writing and was signed by Goodbar, and is introduced in evidence in this case with the testimony of the medical director of that company, who likewise testifies that on the 27th of December the application was rejected; that the agent who took the application was at once notified of this fact and directed' to return to Goodbar the advance payment of five dollars made by him at the time of taking the application, and take up the receipt given him therefor; that this was done, and the receipt given to Goodbar for the five dollars returned to the home office of the company at Cincinnati on the 31st of December, 1913. The plaintiff, however, attempts to escape the effect of this refusal by asserting that the application in this case was made on the first day of December, 1913, two days before the application made to the Ohio National Life Ins. Company, and she introduced in evidence a receipt which was given by the agent at the time the application was taken, and which is dated December 1, without indicating any year, and she asserts that this was given to her husband by the agent on the first day of December, 1913. The application, it is ad
This disposes of the several defenses relied upon, but inasmuch as the case will have to go back for a new trial, it is necessary for us to pass upon the instructions. Instruction No. 1 given for the plaintiff told the jury that inasmuch as the defendant relied upon false representations to defeat
Instruction No. 2 given on behalf of the plaintiff presented the theory that the defendant might waive the requirement of payment of the premium, and tells the jury that if a due bill or note was accepted and the policy delivered unconditionally this requirement of payment was thereby waived. This instruction, we think, properly propounds the law upon this question.
Instruction No. 3 is on the question of suicide. It tells the jury that if there is a doubt whether the insured came to his death by suicide or natural causes, and there is no convincing evidence upon the cause of his death, the law presumes that his death was produced by natural causes; that the law requires more than a preponderance of the evidence to establish suicide; that every hypothesis consistent with death from natural causes must be excluded. This instruction is a fair statement of the law as to the character of proof required to establish death by suicide, and while the defendant assigns as error the action of the court in giving it, no reason is given or argument adduced to support the assignment.
On the part of.the defendant the court gave a number of instructions correctly presenting its various defenses. These instructions, so far as they apply to the false representations made by the plaintiff in his application, are in direct conflict with the plaintiff’s instruction No. 1.- We think they very clearly present the correct theory to the jury, and that there was no error in refusing to give other instructions offered by the defendant covering the same ground. An instruction was, however, offered by the defendant calling for the judgment of the court upon defendant’s defenses, and asking the court to tell the jury as matter of law that defendant had made good defense to the suit, and that the jury should so find. This instruction was refused. In the view Of the case we have above outlined it should have been given.
We will reverse the judgment of the circuit court of Cabell
Reversed and remanded.