LINCOLN HEALTH & ACCIDENT INS. CO. v. COSLOW.

LINCOLN HEALTH & ACCIDENT INS. CO. v. COSLOW.
1932 OK 525
12 P.2d 875
158 Okla. 169
Case Number: 21529
Decided: 07/06/1932
Supreme Court of Oklahoma

LINCOLN HEALTH & ACCIDENT INS. CO.
v.
COSLOW.

Syllabus

¶0 1. Pleading--Prayer not Determinative of Relief.
The prayer does not of itself determine the relief to which a party is entitled, nor the measure of relief to be applied.
2. Insurance--Forfeiture of Fraternal Policy by Insurer--Right of Action in Favor of Assured for Damages for Breach of Contract.
If a fraternal insurance company wrongfully declares the forfeiture of a contract of insurance, issued in favor of one of its members, and gives notice of the forfeiture to the latter, the assured is excused from further performance of the contract, and may treat the contract of insurance as terminated. Thereupon a right of action accrues in favor of the assured against the insurance company for damages for the wrongful breach of the contract.
3. Same--False Statements in Application as Defense--Burden on Defendant to Show Willful Falsity of Statements.
Where a policy of life insurance provides that all statements made by the insured shall, in the absence of fraud, be construed as representations and not warranties, in order for representations made by the insured in an application to avail the insurer as a defense, it must show, not only that the statements were not true, but that they were willfully false, fraudulent, and misleading, and made in bad faith.
4. Same--Willful Falsity as Question of Fact.
The question as to whether certain answers given to questions in an application for insurance are false, and as to the intent of the applicant in making them, is a question of fact for the jury, or for the court sitting as a jury.
5. Same -- Statutory Requirement That Copy of Application Be Attached to Policy.
False representations or warranties in an application for insurance cannot be relied upon by the insurer unless a copy of the application is attached to the policy as required by section 6728, C. O. S. 1921.

Appeal from District Court, Oklahoma County; T. G. Chambers, Judge.

Action by John Coslow against the Lincoln Health & Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Rittenhouse, Lee, Webster & Rittenhouse, for plaintiff in error.
W. A. Smith and Harold D. Smith, for defendant in error.

ANDREWS, J.

¶1 This is an appeal from a judgment of the district court of Oklahoma county in favor of the defendant in error, the plaintiff in the trial court, against the plaintiff in error, the defendant in the trial court. Hereinafter the parties will be referred to as they appeared in the trial court.

¶2 The action was to recover damages from the defendant for the wrongful conversion of two insurance policies which had been issued and delivered to the plaintiff by the defendant. One of the policies provided for compensation for sickness and the other for total disability. The defense was that the plaintiff had made false representations in the application for insurance as to his physical condition; that the plaintiff and the defendant had agreed that the policies should be canceled, and that the defendant had paid to the plaintiff the full amount of the premium paid by the plaintiff to the defendant; that the plaintiff had signed a written release of all liability on the part of the defendant, and that the plaintiff was not totally disabled within the meaning of the policies.

¶3 It is herein contended that the trial court erred in holding that the action was for conversion of the insurance policies rather than an action upon the contracts.

¶4 The language of the petition indicates that the action was one for conversion and not on contract, and notwithstanding the prayer of the petition, which under the decision of this court in Owens v. Purdy, 90 Okla. 256, 217 P. 425, is no part of the statement of the cause of action, we hold that the action was for conversion.

¶5 The evidence was conflicting as to whether or not the policies were voluntarily surrendered by the plaintiff, as to whether or not the plaintiff executed a written release of the defendant, and as to whether or not the plaintiff was totally disabled. Those were questions of fact to be determined by the jury under proper instructions, and the findings of the jury will not be disturbed by this court, for the reason that there was competent evidence reasonably tending to support them.

¶6 The defendant complains of the instructions given to the jury. We have examined those instructions under the rules stated in American Ins. Union v. Mead, 135 Okla. 93, 274 P. 475; American Ins. Union v. Woodard, 118 Okla. 248, 247 P. 398; American Nat. Ins. Co. v. Robinson, 85 Okla. 64, 204 P. 269; Reserve Loan Life Ins. Co. v. Isom, 70 Okla. 277, 173 P. 841; Shawnee Life Ins. Co. v. Watkins, 53 Okla. 188, 156 P. 181; Mutual Life Ins. Co. v. Morgan, 39 Okla. 205, 135 P. 279, and Continental Casualty Co. v. Owen, 38 Okla. 107, 131 P. 1084, and we find no reversible error therein.

¶7 Finding no error in the judgment of the trial court, it is in all things affirmed.