Herbert Coleman (appellant), as executor of the estate of Ed Coleman, brought this action to recover $10,105.20 under a credit life insurance policy issued to decedent by Occidental Life Insurance Company of North Carolina (Occidental). In addition to Occidental, General Motors Acceptance Corporation (GMAC) and Walker Oldsmobile Company, Inc. (Walker) were named as defendants.
The trial court rendered judgment in favor of defendants and against plaintiff, who appeals from that judgment. Appellant raises the following issues:
(1) Whether the trial court properly admitted decedent's credit application in evidence, and
(2) Whether the trial court committed manifest error in finding that decedent made certain false statements of material fact with an actual intent to deceive.
On June 19, 1979, decedent purchased an automobile from Walker in Alexandria, Louisiana, and financed it through GMAC. The loan was secured by a chattel mortgage on the automobile. As part of the loan negotiations, credit life insurance was arranged by Walker through Occidental. A premium of $538.86 for the credit life insurance was included in the purchase price. Decedent died on October 3, 1979.
Subsequently, plaintiff submitted proof of decedent's death to GMAC, the holder of the promissory note, and claimed the amount of the debt remaining under the credit life insurance policy. Occidental denied coverage alleging that decedent had represented his age to be 65 at the time of purchase, when, in fact, he was 75. The terms of the group policy issued to Walker by Occidental expressly excludes coverage of anyone over 65.
Plaintiff instituted this action alleging that Occidental had no just cause for refusing to pay his claim. In the alternative, plaintiff alleged that Walker and GMAC were liable to him for the full amount specified in the insurance contract because Walker, acting as agent for Occidental, made false and/or misleading statements and/or improperly received funds from decedent in executing the insurance contract. Plaintiff brings this devolutive appeal from the judgment of the trial court dismissing his action against Occidental and Walker.
ADMISSIBILITY OF CUSTOMER'S STATEMENT
Appellant contends that the trial court erroneously allowed decedent's credit application admitted in evidence because it was not attached to the policy of insurance as required by LSA-R.S. 22:618(A) which provides:
To preserve a party's right to urge error on appeal, it is necessary to make formal objection to admissibility or competency of evidence sought to be introduced. LSA-C.C.P. Article 1635 (formerly LSA-R.S. 13:4448); Bertoli v. Flabiano, 116 So.2d 76 (La.App. 1 Cir. 1959). The record shows that appellant made no objection to the introduction in evidence of the credit application and, in fact, was the one who introduced that document. Thus, we find no merit to appellant's contention.
Occidental contends that it would not have issued a policy to decedent had it been aware of his true age at the time he applied for credit life insurance. The evidence shows that decedent was 75 years old at that time, which is some ten years above the age limit set by Occidental in the master policy issued to Walker. Occidental bases its avoidance of the policy terms on LSA-R.S. 22:619, which provides:
In Fruge v. Woodmen of the World Life Insurance Society, 170 So.2d 539 (La.App. 3 Cir. 1965), this Court set out the burden of proof required of the insurer by LSA-R.S. 22:619, supra:
The principal witness was Douglas Tidwell, the business manager for Walker. After decedent negotiated the price of the automobile with a Walker salesman, he was referred to Tidwell to arrange financing. Tidwell completed the credit application and sale and chattel mortgage forms involved in the transaction, with decedent providing him with the necessary information. He testified that decedent stated his date of birth to be December 30, 1913, which placed his age at 65 years. Tidwell testified that decedent's application for the credit life insurance would have been rejected if he had known that decedent was over 65. The uncontradicted testimony establishes that a misrepresentation of age in the present case is material since it would have a direct bearing on Occidental's decision to accept the risk.
Thus, the crucial issue is whether decedent made the false statement of material fact with an actual intent to deceive.
It is well established that such a presumption is available in this State. Morgan v. Matlack, Inc. 366 So.2d 1071 (La.App. 1 Cir. 1979); Walters v. Coen, 228 La. 931, 84 So.2d 464 (1955); Wolfe v. Employers Commercial Union Insurance Company, 272 So.2d 714 (La.App. 3 Cir. 1973). The unexplained failure of a party to call a witness who possesses peculiar knowledge of material facts pertinent to the resolution of the litigation entitles the opposing party to the presumption that the witness's testimony would be unfavorable.
Our review of the record establishes that the trial court's finding that decedent misrepresented a material fact with an actual intent to deceive is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978); Canter v. Koehring Company, 283 So.2d 716 (La. 1973).
For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.
GUIDRY, J., dissents and assigns written reasons.
GUIDRY, Judge, dissenting.
I respectfully disagree with my brethren of the majority in their conclusion that the decedent, at the time his credit application was received, misstated his age with actual intent to deceive. There is no evidence in the record indicating that the decedent had knowledge of the age limitations for procuring the credit life insurance. On the other hand, Mr. Tidwell, the business manager for Walker, knew the policy restrictions but made no effort to determine the applicant's eligibility when it should have been apparent to him that decedent was at least near the age limitation. Although the record clearly shows that the decedent misstated his age, this misstatement, whether intentional or not, was made in connection with the credit application and before any discussion with regard to credit life insurance. When credit life insurance was later discussed it would have been a simple matter for Mr. Tidwell to explain the age limitations to the decedent and to then reaffirm that the decedent was, in fact eligible or ineligible for insurance. In sum, I would conclude that the decedent cannot be held to have misrepresented his age with an intent to deceive where the record does not reflect that the decedent was aware of the age limitations applicable to the Occidental policy.
For these reasons I respectfully dissent.