Antonia Pellon v. Connecticut General Life Insurance Company (Two Cases)
| Decision Date | 03 January 1935 |
| Citation | 178 A. 902,107 Vt. 129 |
| Parties | ANTONIA PELLON ET AL. v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY (Two Cases) |
| Court | Vermont Supreme Court |
Estoppel---Insurance---Insufficiency of Evidence To Justify Submission of Question of Whether Insured Had Information Reasonable Investigation of Which Would Have Disclosed Falsity of Insured's Representations---Law of the Case as Rule of Practice---Whether Undisputed Facts Available by Reasonable Inquiry Are Sufficient To Charge Insured with Knowledge of Falsity of Insured's Representations as Question for Court---Binding Effect of Plaintiffs' Witness When Testimony Neither Expressly Nor Impliedly Contradicted---Insured as Chargeable with Knowledge of Its Medical Examiner---Insufficiency of Facts To Estop Insurer in Setting up Defense of Fraud in Application Because of Knowledge of Medical Examiner---Effect of Existence of Sputum Tests of Insured, Where Application of Insured Contained False Statement as to His Freedom from Tuberculosis, on Question of Estoppel To Set up Insured's Fraud.
1. Knowledge of person whose acts are relied on to establish waiver or estoppel must be of essential facts necessary to enable person of ordinary prudence and judgment to act understandingly, and not mere inference.
2. In actions of contract on life insurance policies, where insured had made material misrepresentations in applications respecting his tubercular condition, attendance by physicians, and as to his health, and was barred from recovery thereby unless insurer had waived defense or was estopped from asserting it, held that evidence was insufficient to justify submission to jury of question whether insurer had information which, if pursued with reasonable diligence, would have led to discovery of facts and of falsity of insured's representations.
3. Rule that decision in case by court of last resort is law of that case on points presented throughout all subsequent proceedings therein, and no question then necessarily involved and decided will be reconsidered in same case on state of facts not different in legal effect, is one of practice and not based on lack of jurisdiction, hence if Supreme Court should become satisfied that it had made mistake, such Court has power to reopen and reconsider matter.
4. In actions of contract on life insurance policies, whether undisputed facts which a reasonable inquiry by insurer would have brought out are such as to charge insurer with knowledge of false representations of insured in his written application for insurance that he was not afflicted with tuberculosis and was in good health, held for court.
5. In such actions, plaintiffs held bound by testimony of their witness, so far as such testimony was neither expressly nor impliedly contradicted.
6. In such actions, held that insurer was chargeable with knowledge of its medical examiner as to application, concerning what questions were asked insured and as to his answers not appearing accurately therein, but that insurer was not estopped from setting up fraud of insured in procuring life insurance by false statements in application, since it was improbable that, had further investigation been required and undertaken, medical examiner would have received from insured any different answers than those already set down, in view of fact that insured knew that he had tuberculosis, and by concealment of that fact was endeavoring to obtain large amount of life insurance.
7. In such action, where insured had represented that he had not been sick to have a doctor, held that insurer, was not estopped from setting up fraud of insured in procuring life insurance by false statements in application as to his freedom from tuberculosis by fact that sputum tests of which insurer had no knowledge were available.
ACTIONS OF CONTRACT on life insurance policies. Plea in each case, fraud on part of deceased in procuring policies in question. After reversal in Supreme Court of previous judgment for the plaintiffs (See 105 Vt. 508, 168 A. 701) this case was retried before a jury at the September Term 1933, Washington County, Buttles, J., presiding. Verdicts and judgments for the plaintiffs. The defendant excepted. The opinion states the case. Judgment reversed, and judgment for defendant.
Judgment reversed, and judgment for the defendant to recover its costs in each case.
George B. Young and J. Ward Carver for the defendant.
Theriault & Hunt for the plaintiff.
Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
These cases have been here before, see 105 Vt. 508, 168 A. 701, and again come here upon defendant's exceptions after verdict and judgment for the plaintiffs. They are actions upon two life insurance policies on the life of Venerando Paz. The defense was fraud on the part of the insured in procuring the policies. The plaintiffs denied the charge of fraud, and they alleged and claimed a waiver by defendant of any forfeiture and that the defendant was estopped from claiming one.
After the evidence was all in, defendant moved for a directed verdict upon the ground of fraud, and upon the further grounds: "That on the undisputed evidence no facts appear which charge this defendant with knowledge of any of the misrepresentations in the application; the M. I. B. card reading High pulse rate and consumptive tendency' had no tendency to establish or give notice to the defendant that Mr. Paz had, or had been told that he had, tuberculosis of any organ, chronic cough or expectoration, or any disease of the lungs or throat, or had had positive sputum tests, or had had medical advice during the past five years, or that he had a family physician, or was not in good health at the time of the application for this insurance, Part II, and there could be no waiver by the defendant without actual or imputed knowledge of those facts, and no such knowledge came to its attention and no such knowledge was imputed to it." And "That on the uncontradicted evidence reasonable inquiry would not disclose any of the misrepresentations complained of, and that on the uncontradicted evidence tracing the information contained on the M. I. B. card to the source of information thereon does not disclose any of the misrepresentations which we now claim." The court overruled the motion and allowed exceptions on each and every ground thereof; and, following our former opinion that the plaintiffs were bound by the questions and answers appearing in the written application, and that the insured, at the time he signed the application, had tuberculosis, and he knew it, and that his misrepresentations in the application were material to the risk and induced the contract, the court ruled that "it was a fraud as a matter of law, " and only submitted to the jury the issue of waiver or estoppel."
The facts shown upon the issue of fraud are substantially like those detailed in our former opinion and need not be set forth again. As the facts shown upon the issue of waiver or estoppel are substantially different from those shown at the former trial, we mention all facts that appear to be material, although we may be repeating in large part what already appears in the former opinion.
Part II of the application was signed by the insured on October 7, 1929, and he was examined by defendant's medical examiner on that date. The policies were dated October 14, 1929, but were not sent out of the home office of the defendant until October 25. The first premium was paid by the insured on December 14, 1929, the last day the policies could be put into force. The charge of fraud alleged against insured and relied upon in defense is based upon the following questions and answers in Part II of the application:
Answer: "No."
Answer: "No."
Answer: "None."
The result of the physical examination showed a loss in weight of three pounds over the past year, the cause of which was ascribed to the recent death of insurer's wife, a systolic blood pressure of 120 and a pulse rate of 80. The examiner reported that the respiratory murmur was clear and distinct over every part of both lungs and that the lungs were free from every indication of disease, and stated that in his opinion the risk was first class, and recommended its acceptance.
There is an inspection service used by most of the leading insurance companies which the defendant had found to be reliable. Before this application was approved, a report had been procured from the company rendering this service. This report stated that the applicant was a very healthy man and a desirable insurance risk, that it learned of no illness, past or present, that might affect the risk, nor heard of the applicant or any of his family having had consumption. It also stated that his general reputation as to character and morals was good.
On October 14, 1929, insured signed an application to The Mutual Life Insurance Company of New York for a $ 10,000 policy in that company. He was examined on that date by Dr. W. R Harkness, its medical examiner. In this application there were questions of similar import to those in the application to the defendant above quoted, and similar answers were given by insured. Dr. Harkness found a systolic blood pressure of...
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