Dowty v. Prudential Insurance of America

WOOD, P. J. Appeal by plaintiff from order granting defendants’ motions for a new trial.

On January 28, 1952, Gerald P. Dowty, husband of plaintiff, obtained a policy of life insurance (issued on his life) wherein plaintiff was named the beneficiary.

On December 23, 1956, Mr. Dowty was killed while he was piloting an airplane.

In the first cause of action herein plaintiff sought to reform the life insurance policy so that it would include insurance covering the risk of her husband’s being killed while he was piloting an airplane. The alleged basis for reformation was that such a provision was omitted from the policy by reason of fraud and mistake on the part of defendant Prudential, and by reason of mistake on the part of plaintiff and her husband.

In the second cause of action plaintiff sought recovery under the policy as reformed.

The first and second causes of action were tried without a jury, and the judge found there was no fraud or mistake; and he rendered judgment for defendant Prudential.

[753]The third cause of action was tried with a jury, and the verdict was in favor of plaintiff and against Prudential and Creighton (its agent) for $16,000 damages. Judgment was entered in accordance with the verdict. Bach defendant made a motion for a new trial as to the third cause of action. (It appears that the motions were referred to, in the minutes, as one motion, i.e., defendants’ motion for a new trial.) The motions (as so referred to) were granted on all the grounds stated in the motions, which grounds included: insufficiency of the evidence to justify the verdict; errors in law; and excessive damages.

Appellant (plaintiff) contends that there is no substantial conflict in the testimony on material issues; and that the evidence would be insufficient, as a matter of law, to support a verdict in favor of the defendants.

Defendant Creighton was an agent of defendant Prudential for the purpose of soliciting applications for life insurance. In order to obtain prospects for insurance, he mailed circular letters to many persons each month. His first interview with Mr. and Mrs. Dowty was pursuant to their reply to such a letter. He went to their home on January 14, 1952, and discussed insurance on the life of Mr. Dowty. According to testimony of Mrs. Dowty, they told the agent that they wanted “a mortgage insurance” and also “aviation coverage,” and that they wanted the insurance to pay off the mortgage of $8,000 on their home—insurance to cover him when he was flying an airplane; the agent said “that as far as flying an airplane, it wasn’t any more dangerous than driving a car, that we didn’t even need to mention it, but we said we wanted to be covered, with my husband flying an airplane, in ease anything ever happened, that was what we wanted, so my husband filled out this aviation [Aviation Questionnaire]”; that the agent ‘ explained this type of insurance to us, and it sounded pretty good, it would have a savings when my husband reached the age of 65, even though the premiums were a bit higher than we expected”; the agent also told them “about the double indemnity, and we took that, and then this rider [aviation rider] would cost a little extra, but we told him we wanted it”; that, with respect to the aviation rider which was to cover her husband when he was flying an airplane, the agent said he would have to turn the application in to the insurance company “to find out where [whether] the insurance could insure” her husband; the agent said that her husband would have to take a physical examination, and that “it would be