118 Va. 418 | Va. | 1916
delivered the opinion of the court.
This writ of error brings up for review a judgment against the Yew York Life Insurance Company in favor of Mary M. Eranklin for the amount of a policy on the life of her husband, Thomas A. Franklin.
The insured, Thomas A. Franklin, was a man of intelligence and education. On November 2, 1912, he signed a formal application for the policy in suit. This policy was dated November 2, 1912, and was delivered to him December 9, 1912, at which last-named date the amount of one semi-annual premium was paid. The policy contains, among others, the following provisions: “'This contract is made in consideration of the first premium of forty-seven 88/100 dollars, the receipt of which is hereby acknowledged, constituting payment for the period terminating on the second day of May in the year nineteen hundred and thirteen, and the payment of a like sum on said date and on the second day of November and May in every year thereafter during the continuance of this policy, until premiums shall have been paid for twenty full years from November 2nd nineteen hundred and twelve or until the prior death of the insured . . . After delivery of this policy to the insured, it takes effect as of the 2nd day of November nineteen hundred and twelve.” ‘ These provisions appear - conspicuously and in large type on the face of the policy. They are in no way in conflict with the application. The words, “policy written and premium payable semi-annually,” relied upon by counsel for defendant in error to show an ambiguity, can have no such effect. These words were not printed in the original
The second premium, due by the face of the policy on May 2, 1913, was not paid then nor until after the expiration of the grace period of thirty days, and the policy, under its plain and unambiguous terms lapsed accordingly. This fact had been called to Franklin’s attention on or about June 15th, and he promptly and without question recognized his default and proceeded to apply in writing for reinstatement under clause 9 of the policy, which was as follows: “Reinstatement. At any time after any default, upon written application by the insured and upon presentation at the home office of evidence of insurability satisfactory to the company, this -policy may be reinstated, together with any indebtedness in accordance with the loan provisions of the policy, upon payment of arrears of premiums with interest thereon at the rate of five per centum per annum.”
The application for reinstatement was given to him in blank on the 15th of June, was carried off by him and returned on the 18th, duly filled out and signed in his own hand. This paper contained a number of questions to and answers by the applicant. Following these questions and answers and immediately over the signature is a statement of which the following is a part:
*422 “I declare . . . that I made each and all of the foregoing answers. . . . Said answers, each and all, are and I warrant them to he full, complete and true. I have made said answers for the purpose of inducing the New York Life Insurance Company to reinstate my said policy, and I understand that they are material to the risk, and that said company will, and I hereby agree that it shall rely and act solely upon my said answers in passing upon my application for the reinstatement of said policy, which lapsed for a non-payment of premium due on the 2nd day of May, 1913, and is not now in force, except as may be provided by its non-forfeiture provisions.
“I further agree that said policy shall not be deemed reinstated by reason of any cash paid, or settlement made in connection with this application, or otherwise, unless and until said company at its home office in acting upon this application shall have duly reinstated said policy during my lifetime and good health.”
Among the questions asked and answered referred to above were the following:
“What illness, if any, have you had since the date of the above policy? (Ans.) None. What was the nature of each illness, its date and duration? (Ans.) None. What physicians have treated you, or have you consulted since the date of the above policy? (Ans.) None. Are you now in sound health? (Ans.) Yes.”
Franklin died on the 17th day of July, 1913, of a complication of diseases, one of which was nephritis. On the 4th day of April, 1913, Dr. H. E. Jones examined him and found evidences which caused him to suspect nephritis. This examination was made at the request of Franklin’s wife who had telephoned to Dr. Jones that her husband was not well. She requested that he arrange an interview with Franklin, which he did by telephoning the latter and having him come and submit to an examination. It does not appear that Dr. Jones ad
The first question which we shall dispose of arises out of the contention by the defendant in error that, notwithstanding the terms of the contract, the effect of the first payment of the semiannual premium was to keep the policy in force for a full period of seven months (counting the grace period of one month), from the date of the policy. This question turns upon the power of an insurance company to “antedate” its policies— that is, to make them, for the purpose of fixing maturity dates for premiums, relate back to and take effect as of a time prior to their delivery. There is manifestly no essential illegality in such contracts, and we have no hesitancy in deciding that parties who, without being subjected to any fraud or imposition, enter into them, will be bound by their terms. In this ease the contract distinctly made the second premium fall due on May 2, 1912. There was no evidence of any deception or fraud practiced upon Franklin. This, we think, is affirmatively and conclusively shown by his unhesitating and uncomplaining preparation and signature of the application for reinstatement.
Counsel for defendant in error rely strongly upon the case of McMaster v. N. Y. Life Ins. Co., 183 U. S. 25, 22 Sup. Ct. 10, 46 L. Ed. 64, wherein it was held that the payment of an an-, nual premium upon five policies delivered after their date kept
-The witness, Overstreet, who acted for W. K. Davis, the company’s agent, in all the negotiations with Franklin, testified-that he thought he had explained the policy to Franklin and had told him that it would remain in force for seven months, including the grace period, from the time of the first payment, but this evidence was objected to and should have been excluded on the ground that there were no circumstances which warranted the introduction of parol testimony to contradict the terms-of the policy.
Parol evidence is admissible in cases based on insurance policies, as in those based on other written contracts, to explain ambiguous terms, and the courts are disposed to be especially liberal in this respect in dealing with the former class of contracts. But the case in hand affords no just ground upon which to permit parol evidence to explain the intention of the parties. Applying to this evidence, as we properly may, what Judge Buchanan said in Metropolitan Life Ins. Co. v. Hall, 104 Va. 572, 575, 52 S. E. 345, 346, “this understanding or agreement was in conflict with the express terms of the policy, and could not be proved under the well-settled rule that contemporaneous
“Policy best evidence. In the absence of fraud or mutual mistake, the written contract, if there be one, is the best and only admissible evidence of what the contract is as to all matters which it purports to cover.” Richards on Insurance (3d Ed.), sec 85. See, also, to same effect; Thompson v. Ins. Co., 104 U. S. 252, 26 L. Ed. 765; Northern Assur. Co. v. Grand View Bldg. Assn., 183 U. S. 308, 318, 22 Sup. Ct. 133, 46 L. Ed. 213, decided shortly after the McMaster case, supra, and reviewing at length many authorities.
It was error to admit this testimony by Overstreet and to instruct the jury, as was done by instruction number 1 for defendant in error, that upon such evidence they might find that the policy remained in force for seven months after the payment of the first premium.
The next question to be disposed of grows out of the contention on behalf of the defendant in error that what transpired between Thomas A. Franklin and Dr. Jones did not amount to consulting a physician within the meaning of the question and answer appearing in the application for reinstatement. Under the rule adopted in this State and supported by what seem to us to be the better considered authorities from other jurisdictions, “consulting a physician” within the meaning of an application for life insurance depends upon the character of the interview. Modern Woodmen v. Lawson, 110 Va. 81, 86, 65 S. E. 509, 135 Am. St. Rep. 927; Cole v. Mutual Life Ins. Co., 129 La. 704, 56 South. 645, 27 Ann. Cas. (1913 B) 748, and cases cited in note to Met. L. Ins. Co. v. Brubaker, 18 L. R. A. (N. S.) at page 365. This rule finds its foundation in the favorable construction always accorded to the insured, and the generally recognized principle that good faith and substantial truth are all that can be required of the insured in applications for insurance. If, therefore, it could
The instruction was as follows: “The court instructs the jury that even though you may believe from the evidence that the payment of the second premium on the policy sued on was not made while the policy was in full force and effect, yet, if you believe from the evidence that the defendant company accepted and received the application for reinstatement and executed its receipt in payment therefor, you shall find for the plaintiff, unless you believe that it has been proven by a preponderance of the evidence that the answers in such application were wilfully false or fraudulently made, or that they were material.”
We deem it proper to add, however, inasmuch as this case may be tried again, that it would have been better to incorporate in the instruction an explanation of what consulting a physician legally means in a case like this, as indicated in this opinion and in the Lawson Case, supra, as well as the import of the words “sound health,” as indicated in Greenwood v. Royal Neighbors of America, ante, p. 329, 87 S. E. 581, the opinion in which is handed down at the same time with this one.
For the errors pointed out in this opinion, the judgment will be reversed, the verdict of the jury set aside, and the cause remanded for a new trial to be had not in conflict with the views herein expressed.
Reversed.