Summary
holding that where a life insurance applicant makes a false statement regarding his rather obvious medical history and no evidence is adduced by the beneficiary/plaintiff to explain the falsity, it is "unreasonable" to infer that the falsity was not willfully and fraudulently stated
Summary of this case from Ferrar v. Federal Kemper Life Assurance Co.Opinion
No. 32931
Decided October 22, 1952.
Insurance — Life — Statements in applicant's application — Wilfully false and fraudulently made, as matter of law, when — Section 9391, General Code — Applicant's knowledge of serious ailment — Evidence sufficient to establish — Wilfully false and fraudulently made answers of applicant — Not excused because of insurer's medical examination of applicant.
1. Where an applicant for life insurance states in his application for such insurance that the present condition of his health is good and that he has neither consulted nor been treated by any physician within the past five years, although he has been treated by a physician for a serious ailment and knows that he has had a serious ailment, such statements are as a matter of law wilfully false and fraudulently made within the meaning of Section 9391, General Code.
2. Where such applicant made 11 visits to a physician during a period of nine months before such application and was treated by that physician for a serious ailment during part of that time and where there is no other evidence tending to prove that such applicant did not know that he was suffering from some serious ailment, reasonable minds can only conclude that such applicant knew that he was suffering from some serious ailment.
3. The mere fact that an insurer had its medical examiner examine the insured before issuing a policy of life insurance will not relieve the insured or those claiming rights under the policy issued on his life from the consequences of wilfully false and fraudulently made answers of the insured in the part of his application relating to the condition of his health.
APPEAL from the Court of Appeals for Mahoning county.
This action was instituted by plaintiff against defendant to recover on a policy insuring the life of plaintiff's deceased husband.
Defendant contended that, on the evidence presented, it was entitled to judgment as a matter of law by reason of certain answers made by plaintiff's husband, herein referred to as the insured, to certain interrogatories propounded to him by defendant's medical examiner prior to issuance of the policy.
So far as material, these interrogatories and the answers thereto were as follows:
"6. What is your present condition of health? Good.
"7. (a) When last sick? 1919.
"(b) Nature of last sickness? Typhoid fever.
"(c) How long sick? Three weeks.
"* * *
"18. Have you ever had any of the following complaints or diseases?
"* * * Disease of the heart * * *. If yes, give particulars, dates and duration. No.
"* * *
"22. Have you ever had any
"* * *
"(b) Illness or occupational disease? Yes. Typhoid fever 1919, 3 weeks * * * Egypt.
"23. What clinics, hospitals, physicians, healers or other practitioners, if any, have you consulted or been treated by, within the past 5 years? If none, so state. None."
These interrogatories and the answers thereto were in part B of the insured's application for the policy of insurance as submitted by insured to defendant prior to the issuance of the policy. A full and complete copy of the application including this part B was returned with, and as a part of, the policy issued by defendant to the insured.
The insured signed the certificate to part B of the application on June 23, 1948. Pursuant to that application the policy sued on was issued by the defendant on September 1, 1948. The insured died on October 14, 1948.
The proofs of death submitted by plaintiff to defendant and admitted in evidence without objection state that the cause of insured's death was "acute posterior occlusion." As part of the proofs of death plaintiff submitted a "physician's statement" signed by Dr. Szucs which reads in part:
"4. (a) Immediate cause of death * * * Acute posterior occlusion.
"* * *
"(c) Contributory cause. Coronary insufficiency.
"* * *
"8. Give the date, cause, duration, and result of each illness for which you treated the deceased within five years prior to death.
"Date Cause Duration Result "10-8-48 Cholecystitis Few weeks Good "3-13-48 Coronary insuff. Two months Good"
Plaintiff offered in evidence the certificate of the insured's death which reads in part:
"Medical certification.
"* * *
"21. I hereby certify that I attended the deceased from 10-8-47 to 10-14-48, that I last saw him alive on 10-13-48 and that death occurred on the date and hour stated above.
"Immediate cause of death. Posterior coronary occlusion.
"Due to hypertension. Hypertensive heart disease.
"Due to coronary insuff."
Dr. Szucs, who testified that he specialized in internal medicine which covered diseases of the heart, also testified that the insured was his patient and visited him on the following dates:
October 8, 1947.
October 15, 1947.
November 12, 1947.
December 9, 1947.
January 1, 1948.
January 13, 1948.
February 13, 1948.
March 13, 1948.
April 14, 1948.
June 14, 1948.
July 12, 1948.
August 27, 1948.
By reason of the incompetence of a physician to testify "concerning a communication made to him by his patient in that relation, or his advice to his patient" (Section 11494, General Code), Dr. Szucs was not permitted to testify as to what he found as to the health of the insured or what treatment he recommended (See Swetland v. Miles, 101 Ohio St. 501, 130 N.E. 22).
It was stipulated that if Dr. Bunn were called he would testify that he was consulted by the insured on November 28, 1947.
Dr. Warnock, defendant's medical examiner, testified that he asked the insured each of the questions in part B of the application for the policy which purported to be answered by the insured and that he correctly recorded the answers of the insured to those questions and saw the insured sign the certificate with respect to those answers. He also testified that an examination of this type requires about half an hour and that he would not expect to find the particular heart condition with which insured was suffering by means of such examination and that such heart condition could be ascertained if at all only by an electro-cardiogram which was not taken.
There was no evidence that any representative of defendant knew that the insured had had any trouble with his health or had consulted any doctor. Both the defendant's medical examiner and the defendant's agent testified that they did not know of any such trouble or consultation.
The representative of the defendant at the home office, who passed upon the insured's application, testified with respect to each of the questions and answers hereinbefore quoted from the insured's application. He stated that each of the answers to those questions was material, that the answers as given constituted a part of the inducement for the issuance of the policy, and that if correct answers had been given the application would not have been approved and the policy would not have been issued. He testified further that the company had no knowledge that the answers to any of those questions were not correct.
In the Common Pleas Court the defendant's motion for a directed verdict, made at the conclusion of all the evidence, was overruled, the jury rendered a verdict for the plaintiff and the trial judge overruled the defendant's motion for judgment notwithstanding the verdict and rendered judgment for the plaintiff.
That judgment was affirmed by the Court of Appeals.
The cause is before this court on appeal from the judgment of the Court of Appeals, pursuant to an allowance of a motion to certify the record.
Mr. John B. Cunningham, for appellee.
Messrs. Hammond, Hoyt Hammond, for appellant.
In support of her contention that the judgments below should be affirmed, plaintiff relies on Section 9391, General Code, which reads:
"No answer to any interrogatory made by an applicant, in his or her application for a policy, shall bar the right to recover upon any policy issued thereon, or be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer is wilfully false, was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and, also that the agent or company had no knowledge of the falsity or fraud of such answer."
On the evidence in this record, reasonable minds could only conclude that the answers of the insured in his application, which have hereinbefore been quoted, were material and induced the defendant to issue the policy and that but for such answers the policy would not have been issued. Haddad v. New York Life Ins. Co. (C.C.A. 6), 42 F. (2), 651. See annotation at 131 A.L.R., 617.
Although apparently recognizing that neither defendant nor any of its agents had "knowledge of the falsity or fraud" of those answers, plaintiff contends that reasonable minds might conclude that defendant's medical examiner should have acquired knowledge of their falsity from his examination of the insured. However, the only evidence in the record is to the effect that the usual one-half hour examination given by defendant's medical examiner to applicants such as insured did not and would not disclose the particular heart condition for which the insured was being treated and of which he died and that such condition could be disclosed, if at all, only by a more extensive examination, which would not be given unless the answers of such an applicant disclosed some reason for having doubt as to the condition of his health.
The mere fact that an insurer had its medical examiner examine the insured before issuing a policy of life insurance will not relieve the insured or those claiming rights under the policy issued on his life from the consequences of wilfully false and fraudulently made answers in the part of the insured's application relating to the condition of his health. Monahan v. Mutual Life Ins. Co., 192 Wis. 102, 109, 212 N.W. 269, 272.
Although admittedly the answers of insured in his application, which have hereinbefore been quoted, were "false," plaintiff contends that reasonable minds might conclude that they were not "wilfully false" and "fraudulently made."
In support of that contention it is urged that, although the undisputed evidence discloses that he was, there is no evidence that insured knew that he was being treated for a serious ailment. However, it is unreasonable to infer that the insured did not know that he was suffering from a serious ailment in view of the undisputed evidence of his 11 regular visits to a physician during the nine months before his application for the policy, including one nine days before that application, and also his subsequent visit to a physician just 19 days after that application. See Mutual Life Ins. Co. v. Hurni Packing Co. (C.C.A. 8), 260 F., 641, 644; Bailey v. Pacific Mutual Life Ins. Co., 336 Pa. 62, 64, 6 A. (2), 770, 771.
In the absence of any evidence tending to prove that insured did not know that he had been treated for a serious ailment, our conclusion is that the trial court should have granted defendant's motion for a directed verdict and, after refusing to do so, should have granted defendant's motion for judgment notwithstanding the verdict.
The judgment of the Court of Appeals is therefore reversed and final judgment is rendered, as requested by defendant, determining that defendant's sole liability to plaintiff is for the amount of the $26.76 premiums paid to defendant on the policy and heretofore tendered to plaintiff.
Judgment reversed.
STEWART, MIDDLETON, MATTHIAS and HART, JJ., concur.
ZIMMERMAN, J., concurs in paragraphs one and three of the syllabus but dissents from the judgment.