Askey v. New York Life Ins. Co.

• Decision Date: 30 April 1918
• Docket Number: 14479.
• Citation: 102 Wash. 27,172 P. 887
• Court: Washington Supreme Court
• Parties: ASKEY v. NEW YORK LIFE INS. CO.

172 P. 887

102 Wash. 27

ASKEY v. NEW YORK LIFE INS. CO.

No. 14479.

Supreme Court of Washington

April 30, 1918

Department 2. Appeal from Superior Court, King County; John S. Jurey Judge.

Action by Amy L. Askey against the New York Life Insurance Company on a life insurance policy. Judgment for plaintiff, and defendant appeals. Affirmed.

H. T. Granger, of Seattle, and Jas. H. McIntosh, of New York City, for appellant.

Bausman Oldham & Goodale, of Seattle, for respondent.

PER CURIAM.

The respondent, as beneficiary in a policy of insurance issued by the appellant upon the life of her husband, George M. Askey who died on August 9, 1916, brought suit to recover thereon. The appellant set up as an affirmative defense that the insured made application for insurance on July 30, 1915, and in response to the question, 'Have you ever suffered from any ailment or disease of the heart or lungs?' answered that in 1911 he suffered a severe attack of pneumonia for several weeks from which he had recovered, the only physician consulted by him being Dr. Klamke, of Port Gamble, Wash. To the questions whether he had ever suffered from 'disease of the stomach or intestines, liver, kidneys or bladder' and 'Have you consulted a physician for any ailment or disease not included in your above answers?' his response was 'No.' The answer to the complaint then sets forth that:

'The defendant further alleges: That the said statements in said application were false, and were known by the said George M. Askey to be false at the time the said statements were made. That they were material, and that the same were made for the purpose of deceiving and defrauding this defendant in this: This the said Askey stated that he had suffered from the disease of pneumonia in 1911, and that he had not consulted a physician for any ailment or disease not included in said answers, whereas in truth and in fact the said George M. Askey, suffered in 1911 and 1912 from the disease of tuberculosis, and consulted and was treated by one Dr. Klamke for tuberculosis at that time. That had the defendant known that said statements were false it would not have issued the policy sued upon in this cause. That it relied upon said statements and believed the same to be true and was induced thereby to execute and deliver the said policy of life insurance.'

The cause was tried to a jury, which returned a verdict for the beneficiary for the amount of the policy upon which judgment was rendered in favor of the respondent. The insurance company appeals, assigning as errors the insufficiency of the evidence and the improper admission of evidence.

Our statute governing contracts of insurance provides that:

'No oral or written misrepresentation or warranty made in the negotiation of a contract or policy of insurance, by the assured or in his behalf, shall be deemed material or defeat or avoid the policy or prevent its attaching, unless such misrepresentation or warranty is made with the intent to deceive.' Rem. Code, § 6059-34.

In the recent case of Brigham v. Mutual Life Ins. Co., 95 Wash. 196, 163 P. 380, we held that under this statute the falsity of representations in the application for insurance would not defeat the policy, unless it should be further found that they were made with intent to deceive the insurance company. The affirmative defense set up in this case imposed the burden of establishing such fraudulent intent on the appellant. The evidence shows that the insured in the latter part of the year 1911, while residing at Port Gamble, Wash., was suffering from some ailment, which he represented in his application for insurance as being pneumonia. On the advice of his attending physician, Dr. Klamke, he went to California in January, 1912. He obtained employment there, and remained for about one year and a half, returning to Port Gamble, where he intermarried with the respondent in July, 1913. He made application to appellant for insurance on July 30, 1915, being at that date 26 years of age. A careful physical examination of him was made by the appellant's medical examiner, who found no indications of tubercular trouble. An analysis of his urine made at the time showed indications of albuminuria, and on that account the appellant would not issue a policy unless the applicant agreed that his age for premium purposes be advanced from 26 to 39 years, and that he would pay the increased premium exacted for the latter age. The policy as amended to this effect was issued on September 27, 1915. The insured began to have trouble with his stomach and intestines in February, 1916, and had difficulty in retaining his food. In the latter part of May, 1916, he was operated on for abscess of the appendix. He never regained his health, and died in less than three months after the operation. Among the proofs of death presented to the appellant was the affidavit of Dr. Klamke, in which he stated that he treated the insured for 'tuberculosis of the lungs, first time in 1912 (1911); sent him to California'; that the immediate cause of his death was 'general tuberculosis, lungs, larynx, appendix,' for which the insured had consulted him '4 years ago.' This affidavit of Dr. Klamke is the only evidence tending to show that the insured had suffered from pulmonary trouble, other than pneumonia. If in truth the insured had tuberculosis, there is no evidence showing that he had knowledge of the fact, other than the natural inference that one really suffering from such a disease would probably know it. Dr. Klamke was not called as a witness, and there is no proof that he ever informed his patient that he was suffering with tuberculosis.

The death certificate filed by the respondent was not proof of any disease suffered by the insured 4 or 5 years prior to death. It constituted an admission by the respondent that the statement in the death certificate was probably true. Such statement constituted prima facie evidence which was subject to refutation; and, even allowing it full force to establish the physical condition of the insured, it was not proof of the insured's intent to deceive the company. The weight of authority is that the proof of death of an insured is conclusive only of the fact of death, and is merely prima facie evidence of any statements contained as to the past health of the insured. Spencer v. Citizens' Mut. Life Ins. Co., 3 Misc. Rep. 458, 23 N.Y.S. 179; John Hancock Mut. Life Ins. Co. v. Dick, 117 Mich. 518, 76 N.W. 9, 44 L. R. A. 846; Fidelity Life Ass'n v. Ficklin, 74 Md. 172, 21 A. 680, 23 A. 197; May on Insurance (4th Ed.) §§ 460, 465; Insurance Co. v. Newton, 22 Wall. 32, 22 L.Ed. 793; Insurance Co. v. Higginbotham, 95 U.S. 380, 390, 24 L.Ed. 499. See, also, Boylan v. Prudential Ins. Co., 18 Misc. 444, 42 N.Y.S. 52, where the testimony of the mother of the assured contradicting the physician's certificate was held admissible as proof of the veracity of health statements in the application for insurance and sufficient to raise an issue upon that fact.

In rebuttal of the inference of George M. Askey's knowledge of his condition raised by the affidavit of Dr. Klamke there is the testimony of the physician of the insurance company, who made a thorough examination of the insured and found no indications of tubercular trouble. There is also the testimony of the soliciting agent of the insurance company that the applicant had no appearance of consumptive disease and was regarded by him as a good risk. The wife and mother-in-law of the insured also testified that he had no indications of pulmonary trouble. In view of the evidence it is apparent that the appellant failed to conclusively establish intent to deceive on the part of the insured. Viewing the evidence in the light most favorable to the appellant, it must be held that it presented such a conflict as to raise a question for the jury.

The appellant contends that it was error on the part of the court to admit the testimony of the wife and mother-in-law of the insured as to his physical condition and the absence of indications of tubercular disease. Nonexpert opinion evidence of the physical condition and appearance of an individual is generally held to be admissible. Jones, Blue Book of Evidence, § 360; Ferguson v. Davis Co., 57 Iowa, 601, 10 N.W. 906; Billings v. Metropolitan Life Ins. Co., 70 Vt. 477, 41 A. 516.

We have held such evidence competent upon the issue of intent in the case of Goertz v. Continental Life Ins. and Inv Co., 95 Wash. 358, 163 P. 938, where the testimony of acquaintances and associates who had adequate opportunity for observation was admitted for the purpose of rebutting any presumption of knowledge on the part of the...