holding that plaintiff could not rely on the defense of waiver "if it could exist at all," without properly pleading itSummary of this case from Allstate Insurance Company v. Jean-Pierre
A life insurance policy declared that if the insured was not in sound health at the date of issuance or if before said date he has had any pulmonary disease, then the company might declare the policy void. The insured was not in sound health at that time and for some time previous had had pulmonary tuberculosis. Held that a good defense to an action on the policy was established. That the insured did not know she had this disease could not avail the plaintiff, nor would the fact that she was examined by the company's physician who reported her to be in sound health establish a waiver of the conditions in the policy, which if it could in any event be found to exist would have to rest on the further fact that the physician discovered or ought to have discovered that she was suffering from tuberculosis.
Argued December 1st, 1931
Decided February 16th, 1932.
ACTION to recover the proceeds of an insurance policy, brought to the Court of Common Pleas for the Judicial District of Waterbury and tried to the court, Beardsley, J.; judgment for the plaintiff and appeal by the defendant. Error and cause remanded.
Walter E. Monagan, for the appellant (defendant).
William K. Lawlor, for the appellee (plaintiff).
The plaintiff sought to recover upon a policy of insurance issued upon the life of Anna Popowicz. The defendant claimed a breach of the following provision in the policy: "If, (1) the insured is not alive or is not in sound health on the date hereof; or if (2) . . . before said date, the insured had had any pulmonary disease . . . then, in any such case, the company may declare this policy void and the liability of the company in the case of any such declaration or in the case of any claim under this policy, shall be limited to the return of the premiums paid on the policy." If there was a breach of either or both of these provisions, in the absence of some countervailing circumstance, the defendant was not liable. Barker v. Metropolitan Life Ins. Co., 188 Mass. 542, 545, 74 N.E. 945; Packard v. Metropolitan Life Ins. Co., 72 N. H. 1, 54 A. 287; Metropolitan Life Ins. Co. v. Chappell, 151 Tenn. 299, 309, 269 S.W. 21; Logan v. New York Life Ins. Co., 107 Wash. 253, 181 P. 906; Murphy v. Metropolitan Life Ins. Co., 106 Minn. 112, 118 N.W. 355. It was not necessary that it should declare the policy void in order to resist liability when sued upon it after the death of the insured. Souza v. Metropolitan Life Ins. Co., 270 Mass. 189, 170 N.E. 62; Orsini v. Metropolitan Life Ins. Co., (N. J.), 154 A. 201. The trial court has found that the insured was not in sound health when the policy was issued and at that time had and for some time before had had pulmonary tuberculosis. Under the facts of this case a good defense to the action was established. That the insured did not know she had this disease or had suffered before the issue of the policy from anything more than temporary ailments and hence that she was not guilty of any wilful misrepresentation in her application for the policy, even if the finding of the trial court to this effect should be sustained, could not avail the plaintiff. The facts that she was examined by a physician representing the company before the policy was issued and that he reported her to be in sound health, would not in themselves be sufficient to establish a waiver of compliance with the conditions in the policy. Such a waiver, if it could exist at all, would have to rest upon the further fact that the physician discovered or ought in the exercise of reasonable care to have discovered that the insured was suffering from tuberculosis. But such a situation is not found. Nor could the plaintiff take advantage of it without proper pleading. Goldner v. Polak, 108 Conn. 534, 537, 143 A. 882.