Winger v. Gem State Mutual of Utah
449 P.2d 982
Utah
1969
Check Treatment

*1 449 P.2d 982 Appellant WINGER, Plaintiff and

Grant UTAH, OF MUTUAL STATE GEM Respondent. Defendant No. Supreme of Utah. Court 29, 1969.

Jan. Rowe, appel- City, Lake

Del B. Salt lant. Nelson, Nelson,

Romney George Ford & City, respondent. Scalley, Salt Lake G. TUCKETT, Justice. brought action plaintiff as a bene- seeking to recover

court below ficiary what claims was under Grant entered into between of insurance judgment an adverse company. From appealed required has below the medical court No examination was Winger. this court. the case of forwarded the home the de- office of 25, 1966, one Rex On October Idaho, Pocatello, at fendant and on Novem- *2 agent the defendant insurance com- an 1966, 4, ber the an in- defendant after pany, application obtained an from Grant vestigation that Grant determined Winger policy for a of life insurance Winger grounds was not on other insurable $5,000, policy in the sum of which also com-, than medical. defendant sent a provided indemnity in the event for double agent England its with munication to Rex of accidental death. At the of the time notify applicant Winger the instruction to application Winger England the to that had been applied upon sum of to be the first $25.60 defendant, by to re- declined and also the year’s premium. England At re- the time premium the The com- fund collected. Winger’s application ceived for insurance England by received munication was gave Winger to entitled an instrument attempted and he thereafter November Receipt.” the “Conditional The face of notify the Winger him of to contact to receipt acknowledged receipt of the and to return action of defendant amounting premium months’ premium to two collected. On November injuries Winger in fall fatal received language “subject also included condi- to from which died from a scaffold tions reverse side.” The conditions on January 21, From time provide the reverse side of the form Winger accident until death remained- part in as follows: England to unconscious and was unable policy The effective will him communicate with refund or to be the application, later of: date of or money collected. examination,

date of medical provided court Proposed that'the below the at-‘ by Company determined at its Busi- tempted agent, to that the defendant’s show ness in express Office accordance with its rules Rex ostensible practices, to be authority insurable on such bind the in to defendant a con policy exactly daté for the applied- as applica tract of insurance at the time the for; premium 2. Full first is paid by conflicting in Winger. tion was made On cash on date application; Policy evidence court below the court found exactly is issued for within England authority that did bind not * * thirty days date; from this .*. -company finally the defendant in a con question tract of insurance.1 The distinguishablé upon that case is question ground mixed in authority being a that case the insurer did agent’s prior disturbed decline not be time will and fact of law. injuries fatal being have been suffered appearing to it this court applicant, evi seeking but that was further evidence upon substantial purpose as a matter medical information for the of de determined court dence termining contract. charged. to be no enforcible was that there law judgment of the court is af- below discloses us before The record respondent. firmed. Costs time reasonable within a acted Winger determination making its in CALLISTER, HENRIOD, and EL- also It its rules. under insurable LETT, JJ., concur. rea- with acted appears to com- attempting dispatch sonable CROCKETT, (dissenting). Chief declining Justice action Winger its municate fact The defendant application. holding cannot subscribe to the Winger was determination its My was not insured. view of resulting *3 accident the prior to insurable record is that reasonable conclu- the injuries to him. fatal the in contrary. supported sion is the is This testimony, by by receipt the both and wording of is clear from It as a itself which defendant relies obligation of receipt that defense; in taking together, them upon its determination was conditional opinion, they proof constitute irrefutable its according to insurable applicant was insurance; there was a contract of having practices. The defendant rules and practically and there is no evidence to the Winger was its determination contrary. n _ . having to decline elected insurable application, are constrained to It in important we is to -have mind that in- contract, of insurance existed that no is a matter of surance which is view plaintiff.2 by The meeting in favor of the determined of minds Empire, parties. of Prince undisputed cites the case Western evidence is The recently Company3 Life de agent, that the Eng- Insurance defendant’s Mr. -Rex us, court, by appears land, cided this- but it- deceased that was -.toldthe insured Insurance, 2d, 695; 1223; 1 On Couch Corning Section 26 :192. 44 Yale Law Journal Co., Co., 2. v. Prudential Ins. 273 N v. Prudential Ins. 147 Ohio Leube 668, 338; Equitab 450, Y. 8 N.E.2d Green v. St. 2 72 N.E.2d A.L.R.2d 936. Soc., Assurance Life Utah 2d 428 P.2d 163. le (cid:127) paid It from the time is in to the submitted addition issued; foregoing testimony, receipt and the face of de- from which the indica- receipt is There no ceased would understand in- confirms this. he was any way tion that the deceased was sured from the paid money, this time he of, agree- that he indicated or understanding changed aware would not be a char- layman’s the condition which I receipt ment with examination of the itself. print” “in the the back affirmatively as fine on receipt acterize face thereof, nulli- which the defendant contends showed is coverage. the insurance It fies de- the insurance which the print the fine thereof reverse side bought paid ceased below, for. set out places nullify reliance to coverage;' the insurance pertinent testimony The' of the defend- agent, England, ant’s Mr. is: “CONDITIONS: policy date effective will be the Now, Q. (By Mr. Rowe) Mr. of; later application, date of representations you spe- what did make medical examination, provided cifically Winger you is- Mr. before that the sued receipt you him this conditional have ?

mentioned Proposed is determined the Company at its Business Office in Well, cases, give as in all when accordance with its practices, rules and man, receipt your I tell the is “This to be insurable on such date for policy policy, particular take for so care exactly applied for; as it, because you are you insured. If door, instance, walk out 2. Full first in cash have an you accident will be insured.” application; date of Q. Now, here, point say you did Policy exactly is issued specific those words that just thirty days within date; from this stated to at time? 4.' Total insurance in force with the general, yes. Company on the life of the proposed in- *4 Q. you represented sured, And that including to him amount at. now n very insured, he was $15,000. time would he will not exceed give you money for this' conditional , approved, is not If refund will receipt, that a fair is statement? -receipt. be on surrender If of (Emphasis A. Yes. added.) regarding are not advised proposed above, question notify there can be no but please thirty days, set out within írisurancé only be- not could the deceased Office. Coiripány at its'Business thé covered, not but He could lieved he'was Mutual” State Gem any- reasonably be deemed to have believed well, of the declaration that from Note thing else. above, is stated that where it the first .line be about this examination This is also to there is no medical observed here, insured receipt; Ordinarily pays when one the situation ‘which was receipt. receipt is effective he is entitled a The understand .would “date of purpose to im- be from for his Its is not policy would benefit. pose upon from obligation he insured him some application” circumstances, way he is not The he aware. Under such that moment forward. read it be to at all for one would would be unnatural find out otherwise could accept receipt put purse it subparagraphs and a in his four the detail pocket fact, reading con- without it. now even .pick defendant one which .out long money, so he didn’t deprive him insurance cov- tends would place receipt. even have to have a I cannot see This, judgment, would erage. rights fairly it how can limited upon him which be an unreasonable burden it signed when is shown that either justly done.1 cannot be it, it, agreed to or that he was even respect well-recognized.rule with n aware of its contents. is en- such contracts is aspect yet important ordinary, There is another what an titled to benefit of responsibility person this situation. prudent un- would reasonable and circumstances;2 arisen rests difficulties which have derstand under the agent, Mr. the shoulders of the defendant’s further, impermissible to so it company England. It was hold purport fashion a will contract take n whochose him thereof, him and clothed with part one out authority represent it to- in deal- indicia of Applying those rules away in another.3 a public. ing with The deceased testimony itself as and the to the Tayco, Inc., 400 P.2d 16 Utah con not enforce a 1. the court will That n wouldamount provision courts will For the view that to an tract adopt interpretation imposition on the other .of contract unconscionable disadvantaged party Hansen, party that will favor see Andreasen v. n whenhe Guaranty merely 404; written has to a assented P.2d 2d Natl. Mihalovich, Wash., were chosen the terms' which Ins. v. Co. party, § the other see Corbin 648 supra.. Jorgensen Tayco, in Seal v. 3. Of. v. Fire Ins. statement See Hartford Co. ; , Seal 13 Utah 2d 373 P.2d 580 *5 137 knowledgeable prevail ex- as to its defense. regard him as a mitted to right to had no claims grounds business and pert in insurance any- rejecting being suspect that basis later discovered reason to straight- and relation whatsoever thing than honest insurance had no other example, if it representations he made to For the cause of death. forward had impresses me as be- had company.4 It that Mr. for his had been found permit cancer, the com- other afflic- ing singularly unfair heart disease or some therefrom, say pany You should to now effect: tion and his death resulted said, agent nor an increased not have trusted what our have borne defendant would risk, quite a said on the face our have been even what was and there would documents; you problem justice cross-exam- would should have different as to what carefully, you .liability. have require ined him should as to its print read all of the fine reverse said is the basis for What above side, would have discovered judgment that the reasonable.con- represented by oral insurance his state- clusion be drawn from evidence ments and face 'was but parties agreed is that the record an illusion is taken of insurance which Winger; of Mr. away by print the fine reverse side.5 therefor; is still another There consideration which such was the situation at the time of why death; bearing has a defendant should and that the therefore equity good per- not in judgment. be entitled to conscience should be Bateman, Parrish, 4. Cf. v. Motter 2d Utah See Pace Utah 273, 276, 423 P.2d we said: rec where “We where we made this com- ognize principle strange that where there is a ment : “It is inconsistent significant intelligence disparity urge necessity the defendant to plaintiffs for the experience party which one is able to cross-examine Parrish advantage other, representa- verify take fact doubt and * * may he considered also See tions.” White, comment in: Lewis v. 101, 269 P.2d 865.