Brigham v. Mutual Life Ins. Co. of New York

• Decision Date: 02 March 1917
• Docket Number: 13551.
• Citation: 95 Wash. 196,163 P. 380
• Court: Washington Supreme Court
• Parties: BRIGHAM v. MUTUAL LIFE INS. CO. OF NEW YORK.

163 P. 380

95 Wash. 196

BRIGHAM v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 13551.

Supreme Court of Washington

March 2, 1917

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Mildred I. Brigham against the Mutual Life Insurance Company of New York. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Geo. S Cole, of Seattle, for appellant.

Hughes McMicken, Dovell & Ramsey, of Seattle, for respondent.

MORRIS J.

Action on a life insurance policy brought by the wife of the deceased, beneficiary named in the policy. The lower court held that the action must fail because of misrepresentations made by deceased in the application upon which the policy was issued. Respondent pleaded and proved as an affirmative defense that at the time of making the application for the policy on July, 21, 1913, the insured made the following representations:

'17. What illnesses, diseases, injuries, or surgical operations have you had since childhood? None.

'18. State every physician or practitioner who has prescribed for or treated you, or whom you have consulted in the past five years. None.

'19. Have you stated in answer to question 17 all illnesses, diseases, injuries or surgical operations which you have had since childhood? (Ans. Yes or No.) Yes.

'20. Have you stated in answer to question 18 every physician and practitioner consulted during the past five years and dates of consultation? (Ans. Yes or No.) Yes.'

The evidence shows that in April, 1910, the insured fainted while at work. He was carried into a nearby house and later went to his own home without assistance, though accompanied by his brother. A physician was called after the insured reached his home and testified that he found him in bed, but 'perfectly himself mentally and every other way.' The next morning this physician, Dr. Davis, made a more complete examination of the insured, including his urine, in which some albumin was found. Rest and a diet were prescribed. The examinations of the urine were continued for a period of two or three months, though only the one professional call was made. The albumin gradually diminished until in the last examination it entirely disappeared. On January 17, 1911, the insured went to another physician, Dr. West, for a physical examination. He told Dr. West that Dr. Davis had treated him some time before for albuminuria. Dr. West examined the lungs and heart action and also the urine, subjecting it to the usual tests. The urine was found to be without albumin though there was found to be some phosphates which the doctor testified indicated nothing more than a nervous state. He also testified that this examination indicated nothing in the nature of an organic disease, but as the urine was slightly discolored other examinations were made on January 30th, May 20th, and June 30th. As the result of these examinations Dr. West found insured in practically normal health. In June, 1911, while on his way to Whidby Island, insured again fainted. He recovered in a few minutes and appeared perfectly normal thereafter. No physician was called at this time. He was then on his way to take part in a Chautauqua and fulfilled his engagement of one week in apparently good health. In August, 1911, the insured moved to Sumas. On September 6, 1911, Dr. Dalton, of Sumas, who was respondent's medical examiner, at that place at insured's request made a physical examination of him, including his urine. Dr. Dalton continued his examinations of the insured for some time, and testified in regard to such examinations in part as follows:

'I believe I made two or three physical examinations of Lew H. Brigham. These physical examinations, together with the urine examinations, were satisfactory to me as diagnoses of his condition. I believe I took his blood pressure at the time. The urine examinations were thorough as I remember. My habit is to give the urine a thorough examination, including microscopical. By the several diagnoses I have testified to I came to the conclusion that Brigham was in normal health. I reached that conclusion at the end of each diagnosis to which I have testified. After making each of these diagnoses I always told him that there was nothing the matter with him. The diagnoses were satisfactory.'

Some time thereafter Dr. Dalton or his assistant, Dr. Thompson, recommended Brigham to respondent's solicitor as a good insurance risk, and on July 21, 1913, Brigham appeared before Dr. Dalton to take the medical examination. Dr. Dalton testified that at this examination he wrote the answers to questions 17 to 20, inclusive, as insured responded; that at the time he knew nothing of his condition which would lead him to believe the answers to these questions or any of them were incorrect. When he wrote the answer, 'None,' to question 18 he had not forgotten the numerous examinations, consultations, and prescriptions to which he had referred in his previous testimony, but that he did not consider they affected the risk in any way. Upon these facts the lower court sustained a challenge to the sufficiency of the evidence.

Counsel for respondent now contend that the lower court affirmatively found in these answers an intent to deceive. This contention is not sustained by the...