This is an action on a fifteen-year term policy of life insurance on the life of Marcus L. Morgan. The policy was issued in the Indian Territory prior to statehood, and the insured died prior to statehood. The issuing of the policy, the payment of the premiums, and the death of the insured are admitted. The defense is based upon certain statements in the written application for the policy, which are alleged to have been false. Morgan agreed in the application that all of his statements and answers in the application to the company's medical examiner were warranted to be true, and were offered to the company as a consideration for the contract. The application also contained the agreement that the policy should not take effect unless issued and delivered during his continuance in good health. The defendant alleges that the policy of insurance was not issued and delivered during the good health of the insured, and that the statement of the insured that Dr. N.H. Lindsay, of Pauls Valley, was the only physician whom he had consulted in the five years immediately preceding the making of the statements was not true; that he was in bad health at the time the policy was issued and delivered; and that he had consulted with and been prescribed for by numerous physicians besides Dr. Lindsay within the five years next before the policy was issued. *Page 207
The first question involved is whether the statements of the application were warranties or only representations. Statements in an application should not be construed as warranties, unless the provisions of the application and policy taken together require that construction. N.W. Mut. L. Ins. Co. v. Woods,54 Kan. 663, 39 P. 189. See, also, Darrow v. Society, 116 N.Y. 537, 22 N.E. 1093, 6 L. R. A. 495, 15 Am. St. Rep. 430; Fitchv. Insurance Company, 59 N.Y. 572, 17 Am. Rep. 372; Moulor v.American L. Ins. Co., 111 U.S. 335, 4 Sup. Ct. 466, 28 L.Ed. 447. The application in this case was not referred to in the policy, nor made a part of it. The rule is that, where the application for insurance is not made a part of the policy, nor referred to in it, the statements of the application are representations only and not warranties. In such cases the beneficiary can prove his case without disclosing the application. When he proves the policy and the death, he has made a prima facie case. 2 Cooley's Briefs on Insurance, 1134;Goddard v. East Texas Fire Ins. Co., 67 Tex. 69, 1 S.W. 906, 60 Am. Rep. 1; Queen Ins. Co. v. May (Tex. Civ. App.) 35 S.W. 829;Fitzgerald v. Supreme Council, 39 App. Div. 251, 56 N.Y. Supp. 1005. The statements of the application in this case, then, should be considered representations and not warranties, and the fact that they were not strictly true would not avoid the policy unless they were material. Daniels v. Hudson River FireIns. Co., 12 Cush. (Mass.) 416, 59 Am. Dec. 192; Miller v. Mut.Benefit L. Ins. Co., 31 Iowa, 216, 7 Am. Rep. 122; Fitzgeraldv. Supreme Council, 39 App. Div. 251, 56 N.Y. Supp. 1005.
With reference to the effect of the statement in the application that the insured was in good health at the time the application was made, and the statement that Dr. Harve Lindsay, of Pauls Valley, was the only physician whom he had consulted in the previous five years, the court instructed the jury, in substance, that the statements as to ailments and the consulting of physicians would not avoid the policy unless material. Also that a temporary ailment, not contributing in any way to the death of the insured, was not material. *Page 208
The testimony concerning the health of the insured at the time the application was made was conflicting, and the evidence was also conflicting as to the nature of the ailment for which he had consulted other physicians than Dr. Harve Lindsay. The failure of a person applying for insurance, in replying to a question in the application as to the state of his health, to mention that he is slightly and temporarily indisposed at the time the policy is issued, if the indisposition is such as will not seriously or permanently affect his health, will not avoid a policy. Nor will the policy be avoided by a statement that he is in good health at the time, though he may be ill and suffering from a temporary ailment not of a character to permanently affect his health, and the fact that he is so temporarily ailing from some disorder not of a nature to permanently impair his general health at the time the policy is delivered will not avoid the policy, though the application provides that the policy shall not be binding unless delivered while the insured is in good health. Mut. Life Ins. Co. v.Union Trust Co., 112 U.S. 256, 5 Sup. Ct. 119, 28 L.Ed. 708;Valentini v. Metropolitan L. Ins. Co., 106 App. Div. 487, 94 N Y Supp. 758; Woodward v. Insurance Co., 104 Tenn. 49, 56 S.W. 1020; Fidelity Mut. L. Ins. Co. v. Ficklin, 74 Md. 172, 21 A. 680, 23 A. 197; Blumenthal v. Berkshire L. Ins. Co.,134 Mich. 216, 96 N.W. 17, 104 Am. St. Rep. 604; Plumb v. Penn.Mut. L. Ins. Co., 108 Mich. 94, 65 N.W. 611; Hann v. Nat'lUnion Ins. Co., 97 Mich. 513, 56 N.W. 834, 37 Am. St. Rep. 365;Pudritsky v. Knights of Honor, 76 Mich. 428, 43 N.W. 373; Brownv. Insurance Co., 65 Mich. 316, 32 N.W. 610, 8 Am. St. Rep. 894; Billings v. Met. L. Ins. Co., 70 Vt. 477, 41 A. 516;Northwestern Mut. L. Ins. Co. v. Heimann, 93 Ind. 24; FidelityMut. L. Ass'n v. Miller, 92 Fed. 63, 34 C. C. A. 211.
As to whether or not a failure by the insured to disclose the names of all physicians who have treated him within a given time, or whom he has consulted within a given time, constitutes such a misrepresentation or concealment as will vitiate the policy is one upon which there is considerable conflict of opinion. This policy was written in the Indian Territory prior to statehood, *Page 209 and the death occurred prior to statehood. The federal courts would have had jurisdiction of the case had not statehood intervened, and it is governed by the decisions of those courts. In the case of Hubbard v. Mutual Reserve Fund LifeAss'n, 100 Fed. 719, 40 C. C. A. 665, it was held that the question in an application for life insurance as to how long since the applicant had consulted a physician referred to a consultation about some substantial injury or ailment, and not concerning a slight and temporary indisposition. This opinion by the Circuit Court of Appeals is in point in this case, and it seems to establish the rule that, in order to avoid the policy for the failure of the application to give the names of all physicians with whom the insured had consulted within five years next before his death, the consultation must have been concerning some serious injury or ailment or disease. The rule is sustained by a number of authorities. See Valentini v.Metropolitan Life Ins. Co., 106 App. Div. 487, 94 N.Y. Supp. 758, and cases there cited. The question of what rule should be followed in cases arising under the laws of Oklahoma is not decided.
A number of other questions are referred to in the brief of plaintiff in error; but none of them are controlling in view of the decision of the question discussed. The court's instructions were as favorable as plaintiff in error could expect. The evidence is strongly preponderating in favor of the good faith of the insured in taking the policy. The statements of the application being representations only, and not warranties, plaintiff in error would have been required to prove not only that the representations were not true, but that they were made in bad faith. Moulor v. American Life Ins. Co.,111 U.S. 335, 4 Sup. Ct. 466, 28 L.Ed. 447; ContinentalCasualty Co. v. Owen, 38 Okla. 107, 131 P. 1084.
The judgment should be affirmed.
By the Court: It is so ordered. *Page 210