National Life & Accident Ins. v. Whitlock , 198 Okla. 561 ( 1946 )

RILEY, J.

(dissenting). The issue involved is whether a policy of life insurance issued September 21, 1942, on condition that insured was in good health, is ineffective at suit of the beneficiary after the death of insured (April 15, 1943) where insurer’s agent had knowledge at the time of delivery of the policy that insured was not in good health but it does not appear that insured had such knowledge. The policy provided:

“All statements made by insured, or on his behalf shall, in the absence of fraud, be deemed representations and not warranties.”

The cause being submitted to, a jury and determined favorably to the beneficiary, it must- be concluded that insured was not guilty of fraud. Likewise, disputed facts as to the time of physical examinations of insured are resolved.

Insurer’s agent testified that though informed of insured’s true condition prior to delivery of the policy, he did not believe the information given him.

The judgment should be affirmed. Affirmation may be based either upon estoppel or the absence of fraud upon the part of insured. The mere fact that at the time of contract insured had a latent disease, which subsequently caused his death, should not impair obligations of the contract.

Paradoxically as it may seem, the very minute a person begins to live, he begins to die, and though at birth the seeds of death are implanted within each mortal being, none, in the absence of fraud, are without right to enter into binding contracts as against the contingencies of death. Insurer, through its agent, knowingly and as assurer, for hire, assumed the risk. It should fulfill its obligations.

The rule stated in the Texas case (Great Nat. Life Ins. Co. v. Hulme, 134 Tex. 539, 136 S.W. 2d 602) is the general rule in Oklahoma and elsewhere, but there are exceptions and limitations to all rules. National Aid Life Ass’n v. Clinton, 176 Okla. 372, 55 P. 2d 781. I would assume authority of the soliciting agent to act as he did, for wrong on his part will not be inferred. I would then impute to the insurer the agent’s knowledge of insured’s true state of health and so, under the doctrine of estoppel, avoid the contention that the policy of insurance is ineffective.