172 So. 37 | La. Ct. App. | 1937
Ernest Dekan died in the city of New Orleans April 26, 1935. Albert W. Newlin, public administrator, qualified as the administrator of Dekan's succession and in that capacity brought this suit against the Life Insurance Company of Virginia claiming $235 as the proceeds of an industrial life insurance policy which had been issued to Dekan by the defendant company, without medical examination, on December 18, 1934. To this suit the defendant company answered, denying liability upon the ground that a fraud had been committed on the company by Dekan who, it is averred, misrepresented the condition of his health in his written application for the insurance. The premiums which had been paid on the policy amounting to $4.25 were tendered to and refused by plaintiff.
There was judgment below in plaintiff's favor as prayed for, and defendant has appealed.
The record indicates that Dekan was an habitual drunkard and drug addict. He had been an inmate of the City Hospital for mental diseases, having been confined to that institution as a heroin addict on June 6, 1934, and having been released on June 30, 1934.
Abe Creidman, defendant's agent, who had known Dekan for some time, having sold him another policy in the defendant company on a previous occasion and having for two years collected premiums thereon, persistently solicited Dekan for the purpose of selling him the present policy and, on December 18, 1934, was finally successful. Creidman knew Dekan's habits and knew of his confinement to the City Hospital and obtained Dekan's signature to the application when Dekan was staggering drunk. All the answers to the questions in the application were filled in by Creidman, either before or after Dekan signed it. Creidman claims that he propounded the interrogatories to Dekan and wrote the answers as Dekan gave them to him. There is evidence to the contrary and Creidman himself stated "that he (Dekan) just signed the signature and I had to fill out the rest of it." The following questions, each of which is conceded to have been falsely answered in the negative in the application, constitute the basis of the defense of fraud:
"Has life proposed been attended by a physician during the past twelve months?
"Has applicant ever used opium, cocaine, or other alcoholic stimulants to the point of intoxication or ever had delirium tremens? *38
"Has said life ever been under treatment in any dispensary, hospital, or asylum, or been an inmate of any alms house or other institution?
It is contended that the evidence to the effect that defendant's agent had filled in the application was inadmissible and that the objection to its introduction should have been sustained by the trial court. Our attention is called to the following language in the application: "I hereby apply for insurance for the amount and on the life named herein; and I declare that the answers to the above questions * * * are complete, strictly correct and true; that the several questions were duly asked and that the answers given by me are truly recorded hereon. * * *"
The case of New York Life Insurance Company v. Stewart,
The case of Shuff v. Life Casualty Insurance Company,
Act No.
Act No.
Act No.
Act No.
It is contended by counsel for defendant that the effect of the later acts, Nos. 134 and 160 of 1934, is, in all cases where written applications have been obtained, to void a policy whenever misrepresentation and fraud on the part of an assured who misstates facts in his application for insurance concerning his health at the time of his application, is established. To a certain extent this is true. "Wilful" misrepresentation of the health of an applicant at the time of his application will void the policy, Fox v. Life Insurance Company of Virginia (La.App.)
For the reasons assigned, the judgment appealed from is affirmed.
Affirmed.