94 So. 2d 20 | La. | 1957
The plaintiff, Mrs. Florence A. Roche, instituted suit to recover on a policy of insurance issued by the defendant, Metropolitan Life Insurance Company, on the life of her late husband, William T. Roche, in which she is named as beneficiary. The defendant in its answer admitted issuance of the policy but made the affirmative defense that in the application for the policy in suit the insured had made certain false and fraudulent answers for the purpose of deceiving the defendant as to the true condition of his health, and that the policy would not have been issued had the true facts been disclosed. The answer adds that the defendant has no interest in the sum of $321.36 paid to it as premiums on said policy, which amount had been tendered to plaintiff before suit was filed, but refused, and that it wished to deposit said sum in the Registry of the Court. The deposit was made, and following trial there was judgment, rendered in accordance with the verdict of a jury, rejecting plaintiff’s demand. The plaintiff has appealed.
The record shows that on July 12, 1945, the defendant company issued its Policy No. 15,585,393A, agreeing, upon the death of the insured, to pay the sum of $3,000 to the named beneficiary, the plaintiff herein. The application for the policy is divided into Parts A, B and C. Part A, dated May 31, 1945, was, according to testimony in the record, completed by the agent from answers of the insured, and contains applicant’s name and personal data as well as the statement: “It is understood and agreed that: 1. The foregoing statements and answers are correct and wholly true and, together with the answers to questions on Part B hereof, shall form the basis of the contract of insurance, if one be issued. * * Part B, dated June 28, 1945, is labeled “Continuation of the Application, Applicant’s statements to the Medical Examiner.” Part C, the Medical Examiner’s Report, is headed by the printed notation that it is “No part of the Applicant’s Declaration.” It is in Part B that the insured answered “No” to four questions in which he was asked, respectively, if he had “ever
Counsel for appellant argues that the insured considered his illness to be trivial and of no consequence,
The instant contract was confected prior to the adoption of Act 195 of 1948, the Insurance Code of Louisiana (now incorporated in the Revised Statutes as R.S. 22:1 et seq.), and the law applicable is set out in Act 52 of 1906, as amended by Act 227 of 1916.
■ The rule universally obtaining is clearly and succinctly stated in 45 C.J.S., op. cit. supra, thus: “To avoid a policy on the ground of false representation, the representation ordinarily must relate to a matter material to the risk, the test of materiality being whether knowledge of the facts would have influenced the insurer in determining whether to accept the risk or in fixing the amount of premiums. In the absence of statute, a causal connection between the facts misrepresented and the death of the insured is not necessary to establish the right to forfeiture.”
A case having many points of similarity to the one now being considered, and which we think is controlling here, is that of Lee v. New York Life Ins. Co., 144 La. 445, 80 So. 652. In that case, as here, the application for insurance was made on the solicitation and insistence of defendant’s agent, who sought to induce the insured to take a policy for a much larger amount than that applied for; there, as here, the insured denied ever having had any ailment or illness of various named organs of the body, and gave an untrue answer about having
From the record it is clear that the insured, at the time he made this application, was not only aware of the fact that he was suffering from pulmonary tuberculosis, but is bound to have known of the seriousness of his condition because of the number of consultations, the various tests, and the eighteen X-Rays made of his chest and lungs during the period; and we are equally satisfied that the information withheld was material and that the defendant would not have insured the life of Roche without further information relative to the showing made by the tests and examinations mentioned above.
The case relied on by plaintiff, Cunningham v. Penn Mutual Life Ins. Co., 152 La. 1023, 95 So. 110, is not apposite from a factual or a legal standpoint; that case applied the well settled rule of our jurisprudence that questions to an applicant for insurance concerning diseases or consultations are to be understood as referring to appreciable disorders, and not to inconsequential illnesses of a temporary character, though attended by a physician; so that although the answers may be knowingly untrue, the policy will not be thereby avoided unless the said representations are material to the risk.
Nor is there merit in the plaintiff’s argument that “No evidence whatever was offered to show that the insured signed Part B of the application annexed to the policy, nor was it shown that any of the answers appearing therein were written into the application before the same was signed by whomever signed it,” and therefore the plaintiff must prevail since, having made an affirmative defense based on the falsity
Our attention is called to the fact that the judgment makes no reference to the sum of $321.36, representing annual premiums on the policy, which amount was deposited in the Registry of Court below by the defendant. To that extent the judgment will have to be amended.
For the reasons assigned the judgment appealed from is amended by decreeing Mrs. Florence A. Roche to be the owner of the money deposited by the defendant in the Registry of Court, and accordingly the Clerk of the District Court is ordered to turn over to her the amount of $321.36, and as thus amended the judgment appealed from is affirmed; the plaintiff to pay all costs.
. The death of the insured occurred on October 6, 1946, though admittedly from a cause other than pulmonary tuberculosis.
. This is said to be shown through the testimony of plaintiff’s witnesses, which was uncontradicted and was to the effect that the insured was active in his business of conducting two barrooms in which he owned an interest, of running a handbook on horse racing and conducting poker games; he took no special rest, spent almost all his waking hours at his place of business, led a life that at times was dissipated; he also acted as precinct captain and held a job as sidewalk inspector for the City of New Orleans; never spoke of any illness, appeared well and healthy, and no precautions were taken to protect members of the family from contagion, though his grandchildren were often at his home.
. “Be it enacted * * * That every policy of insurance issued or delivered within the State on or after the first day of January, nineteen hundred and seven, by any life insurance corporation doing business within the State shall contain the
. His answer was “Yes,” with the explanation that the consultation related to malaria of which he had had a mild attack one year before, lasting only three or four days.