Johnson v. Massachusetts Benefit Ass'n

The opinion of the court was delivered by McElroy, J. : There is but one question presented by the record in this case, and that is, Did the trial court render the proper judgment upon the findings of facts? The plaintiff instituted this action by filing his petition on the 4th day of October, 1896. The defendant insurance company, on the 16th day of March, 1897, filed its answer, consisting of a general denial, admitting its corporate existence and that it issued the policy sued on, and alleging that plaintiff incurred the disability, if such disability existed, through his own negligence and carelessness. Afterward, during the trial of the case, on May 27, 1897, the defendant company amended its answer by alleging : “That by the terms of the policy the application of said plaintiff for insurance in the Ohio Valley Protective Union, and his application for a transfer to this defendant'company, which said applications were in writing, are made a part of said contract of insurance, and the truthfulness of said statements are warranted by the said plaintiff, and that in each of said applications said plaintiff did state that he was born October 18, 1850, when in fact he was born October 18, 1849, by reason of which false and material statements said policy is wholly void and of no effect.” Thereafter the plaintiff amended his reply, which consisted of a general denial, by averring, among [244] other things, “ that the discrepancy in the age of the insured was a mistake of the agent of the company in taking the same down, and that after the company had full notice and knowledge of the mistake it received and retained premiums from the insured.” Any untrue statement in an application for insurance, made a part of the policy, and warranted to be true, when the application is made the basis of the contract of insurance, avoids the policy, regardless of the question of its materiality. This principle is announced in Modern Woodmen v. Von Wald, 6 Kan. App. 231, 49 Pac. 782; Jeffries v. Life Insurance Company, 22 Wall. 49, 22 L. Ed. 833; Ætna Life Ins. Co. v. France et al., 91 U. S. 510, 23 L. Ed. 401. It appears, however, that an insurance company may waive its right to insist upon a forfeiture. The trial court found that plaintiff was born December 18, 1849, but that his application for insurance erroneously stated that he was born December 18, 1850. Pie was, therefore, one year older than he was represented to be in the application. This error was in the first application through no fault of the insured. It does not appear how the error was carried into the second application. The plaintiff, on December 23, 1895, sustained injuries from the falling of a bridge, which rendered him permanently and totally disabled. The insurance company was notified of the injuries sustained by plaintiff, and on the 15th day of June, 1896, forwarded to him a form of proof of disability to be filled out and returned to the company. This blank form called for information as to the place and date of the birth of the insured. The plaintiff, on the 18th day of June, filled out the blank, setting out, among other things, that he was born in Sweden, December 18, 1849, and returned it to the company. The insurance company made further inquiry among the [245] neighbors of the insured as to his character, and as to the extent of his injuries. The plaintiff thereafter, through his attorneys, forwarded the policy to the defendant company for cancelation, and requested, in writing, the payment ..to him. of the sum of $1000, in full settlement of his claim under the policy. The proofs submitted by plaintiff were examined by the medical directors of the defendant company and its board of directors ; they found the same unsatisfactory, and the company notified plaintiff that his claim for total disability under the policy was disallowed. Afterward, about the last of July, 1896, the plaintiff paid another instalment of premium due upon the policy, which was retained' and kept by the company. In June, 1896, the insurance company was informed that plaintiff'was born December 18, 1849, instead of 1850, as set forth in his application; in July it collected and retained the premium due ; in August it investigated the statements, the proof of loss, and declined to pay the insurance upon other grounds, upon the contention that plaintiff was not totally disabled; and on the 16th day of March, 1897, it filed its answer, setting up a general denial and that it was a corporation and issued the policy sued on ; that plaintiff incurred said disability, if such disability exists, through the negligence and carelessness of the plaintiff. Not until the 27th day of May, 1897, during the trial of the action, did the defendant company seek to avoid the effect of the policy by reason of plaintiff’s age not being correctly stated in the application for insurance. It appears that the insurance company by its conduct waived the right to insist upon a forfeiture of the contract of insurance by reason of the erroneous statement of the age of the insured. The plaintiff is entitled to judgment upon the findings of facts for the [246] amount due under the terms of the policy of insurance. The judgment is reversed, with direction to the trial court to enter judgment upon the findings of facts for the plaintiff in error.