Opinion
No. 34282
Decided July 20, 1955.
Insurance — Life — Copy of application to accompany policy — Section 9389, General Code — Provision applicable to reinstatement application — Non-complying insurer estopped to deny truth of application.
1. Under the provisions of Section 9389, General Code (Section 3911.04, Revised Code), every life insurance company doing business in this state shall return with, and as part of any policy issued by it, to any person taking such policy, a full and complete copy of each application or other document held by it which is intended in any manner to affect the force or validity of such policy.
2. A company which neglects so to do, so long as it is in default for such copy, shall be estopped from denying the truth of any such application or other document.
3. Such provisions are applicable to an application for reinstatement of the policy after default and lapse, as well as to an application for the original policy.
APPEAL from the Court of Appeals for Hamilton County.
In the Court of Common Pleas the plaintiff insurance company instituted this action for the purpose of obtaining the cancellation of an insurance policy in the sum of $5,000 issued May 12, 1949, on the life of the defendant's husband, now deceased, which policy is now claimed to be null and void.
The following year the policy lapsed for nonpayment of the premium due on May 12.
Approximately three months later the insured filed an application for reinstatement of the policy, and on August 14 of that year the plaintiff company reinstated the policy. Subsequently all premiums were duly paid until the death of the insured on April 23, 1952.
The plaintiff company now seeks cancellation of the policy on the ground that the answers to certain questions in the application for reinstatement were fraudulently false, and that the policy would not have been reinstated if the company had known of the falsity of the answers which related to the health and medical treatment of the insured.
To the plaintiff insurance company's petition the defendant widow of the insured filed an amended answer and cross-petition in which she alleged two defenses and asked a judgment for the amount of the policy. The first defense is that the plaintiff company's action is barred by a provision in the policy to the effect that the policy shall be incontestable after two years from its date of issue except for nonpayment of a premium. The second defense is that the plaintiff company failed to furnish the insured, as a part of the policy, a copy of the application for reinstatement and that hence it is estopped to deny the truth of such application.
To the defendant's answer and cross-petition the plaintiff filed a reply.
On the issue of incontestability the trial court held in favor of the plaintiff. However, the issue of estoppel was determined in favor of the defendant widow, and a judgment was rendered in her favor for the full amount of the policy.
On an appeal to the Court of Appeals on questions of law, the judgment of the Court of Common Pleas was affirmed.
The cause is in this court for a review by reason of the allowance of the plaintiff company's motion to certify the record.
Messrs. Marble Vordenberg and Mr. Edward A. Burke, for appellant.
Mr. Joseph A. Segal, Mr. Reuven J. Katz and Messrs. Paxton Seasongood, for appellee.
This court is of the view that the lower courts were correct in holding that the failure of the plaintiff company to furnish the insured a copy of the application for reinstatement estopped the company from denying the truth of the application.
Section 9389, General Code (Section 3911.04, Revised Code), reads as follows:
"Every company doing business in this state shall return with, and as part of any policy issued by it, to any person taking such policy, a full and complete copy of each application or other document held by it which is intended in any manner to affect the force or validity of such policy. A company which neglects so to do, so long as it is in default for such copy, shall be estopped from denying the truth of any such application or other document. In case such company neglects for 30 days after demand made therefor, to furnish such copies, it shall be forever barred from setting up as a defense to any suit on the policy, any incorrectness or want of truth of such application or other document."
The plaintiff company contends that these statutory provisions apply alone to the original application for the policy and not to the application for reinstatement. However, that is not the comprehensive language of the statute. Not only must the company furnish a complete copy of "each" application but also of any "other document" affecting the force or validity of a policy. It is not the province of the courts to read into this sweeping language a limitation that "each" means merely some applications or the original application.
While, of course, the terms of the particular statutes are controlling, it is commented generally in 44 Corpus Juris Secundum, 1074, Section 268, that such a statute "is applicable, not only to an application for the original policy, but also to an application for the restoration or revival of a policy which has lapsed for the nonpayment of premiums, and to an application for the renewal of a policy."
The company claims further that it complied with the requirement of the statute by supplying the defendant widow with a copy of the application when a request therefor was made after the death of the insured, since the insured himself made no such demand. Again this contention finds no support in the statute. The simple, unambiguous language is that the company " shall return with, and as part of any policy issued by it, to any person taking such policy, a full and complete copy of each application." The company reinstated the policy on August 14, 1950. The death of the insured did not occur until April 23, 1952 — more than a year and eight months later — and still the company had not furnished him a copy of the application.
Hence, it is the opinion of this court that the plaintiff company is not entitled to a cancellation of the policy. Furthermore, the lower courts were not in error in rendering a judgment for the defendant widow on her cross-petition.
Judgment affirmed.
MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.