May 14, 1934.
Application, copy of which is attached to declaration on life policy, is deemed part of plea alleging fraudulent misrepresentations, and application, if conflicting with plea, controls.
Application for life policy stating that applicant had asthma occasionally, and containing words "has none" in place for physician's name, held sufficient to put insurer on inquiry concerning seriousness of ailment and physicians employed.
Fraud must be proved by preponderance of evidence.
APPEAL from Circuit Court of Neshoba County.
J. Morgan Stevens, of Jackson, and J.K. Gillis, of Philadelphia, for appellant.
The demurrer does not challenge the plea for any reason of form or for failure to be specific.
49 C.J. 403.
The materiality and importance of a full answer to the questions with reference to a previous disease and especially asthma under the facts pleaded becomes self evident and of great importance. A failure to make a complete answer is tantamount to a wilful concealment.
American Life Insurance Company v. Mahone, 56 Miss. 180; Home Insurance Company v. Cavin, 162 Miss. 1, 137 So. 490; Hope v. National Life Accident Insurance Company, 60 So. 218; Reliance Life Insurance Company v. Sneed, 117 So. 307; 26 A.L.R. 1514.
An intentional or wilful misrepresentation or concealment as to the existence of disease which is material to the risk will defeat recovery on the policy.
37 C.J. 455; Kennedy v. Prudential Insurance Company, 177 Ill. A. 50; 73 A.L.R. 304; Mutual Life Insurance Company v. Dibrell, 137 Tenn. 528, L.R.A. 1917E 554; Voluntary State Life Insurance Company v. Richardson, 146 Tenn. 589, 26 A.L.R. 1270; Ivanesovich v. North American Life Casualty Insurance Company, 145 Minn. 175, 176 N.W. 502.
J.B. Hillman, of Philadelphia, for appellee.
Appellant does not attempt to show that the insured was attended by physicians for the treatment of any disease other than asthma or that she was ever afflicted with any other disease or illness.
In the case at bar it is not charged that the applicant withheld any former sickness or illness or injury.
In the case at bar the applicant discloses the only disease that she had and the only disease complained of in appellant's special plea.
Argued orally by J. Morgan Stevens, for appellant.
Appellee, as administrator of the estate of Ethel Mae Long, deceased, brought this action in the circuit court of Neshoba county to recover one thousand dollars face value of a life insurance policy held by the deceased in appellant company. The court directed a verdict for appellee, judgment was accordingly entered, from which judgment appellant prosecutes this appeal.
The propriety of the directed verdict for appellee turns on the question whether or not the court erred in sustaining appellee's demurrer to appellant's special plea. A copy of the policy of insurance sued on and a photostatic copy of the application therefor were attached as exhibits to the declaration. By the terms of each, the application was made a part of the contract of insurance. The policy was issued on the 5th day of January, 1933. The insured died on the 13th of the same month from an attack of asthma.
Appellant's special plea set up as a defense that the insured in her application made false and fraudulent representations concerning her health, in that she stated that she had asthma for only a few hours at a time and had not had the services of a physician in her ailment, when in truth and in fact she had asthma in its worst form and had physicians attending and treating her therefor on several occasions; that she knew these facts at the time of answering the questions in her application, and her purpose was to defraud appellant; that she knew if she answered these questions truthfully the policy would not have been issued to her; and that by reason of such false representations the contract is void.
The ground of appellee's demurrer to the plea was, in substance, that the plea itself, considered in connection with the application, showed that no fraud was practiced upon appellant. The pertinent questions and answers in the application are as follows:
"6. Have you ever had or been treated for: 6. Yes or no."
"B. Shortness of Breath, Chronic Cough, Spitting of blood, Asthma? B. Yes.
"Give name, history, date and duration of each disease or symptoms. Asthma at times."
"K. Have you given full information about each disease or symptom mentioned above which you have ever had or been treated for? K. Yes."
"9. Describe fully any sickness, disease, accident or injury you have had since childhood:
Nature of illness Date Duration Result Asthma Occasionally Few Hours ____
Physician's Name and Address. Has none."
The application is to be treated as a part of the plea, and, where there is a conflict between them, the application is to control. It will be observed from the questions and answers that the insured stated that she had had asthma a few hours at times and had been treated for it, but that she had no physician then. She was asked no question that would call for an answer that she had had asthma in the worst form. We think these questions and answers in the application were sufficient to put appellant on notice and inquiry as to the seriousness of the insured's ailment, and as to the name or names of the physician or physicians by whom she had been treated. Her answer that she had no physician when the application was made did not mean that she had had none before.
Fraud must be proven by a preponderance of the evidence. If appellant had proven the allegations of its special plea as limited by the application, this requirement of the law would not have been met.