Brown v. Inter-State Business Men's Acc. Ass'n of Des Moines, Iowa
| Decision Date | 08 April 1929 |
| Docket Number | 5645 |
| Citation | 224 N.W. 894,57 N.D. 941 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Sheridan County, Coffey J.
Affirmed.
B F. Whipple for appellant.
Harry E. Dickinson for respondent.
The plaintiff who is a physician, had applied to defendant for a policy of health and accident insurance, on a form prepared by the defendant. The certificate of membership, or insurance policy, was issued January 7, 1926 and the application is made a part thereof. In January 1927 plaintiff underwent a surgical operation for the removal of a pyloric ulcer. This condition brought him within the provisions of the policy requiring the defendant to make him stated weekly payments. In accordance with the terms of his policy he presented proofs of loss, but the company refused to make any payment, and cancelled the policy, on the ground that it had been induced by the plaintiff to issue this policy upon representation, statements and warranties which he made in his application, and "that such representations so made by plaintiff in his written application were false, and the said plaintiff then and there knew the same to be false and the said plaintiff then and there knew that such statements were made for the purpose of, and the said plaintiff did then and there, obtain such policy."
Action was brought and at the conclusion of the plaintiff's case in the district court both sides moved for a directed verdict. The court took the matter under advisement and then made findings of fact, and conclusions of law favorable to the plaintiff. From the judgment entered thereon defendant appeals.
The specific portion of the application which is said to be false is shown by these questions and answers:
"(9) Are you in sound condition mentally and physically?" "Yes."
"(10a) Have you ever had any disease of the heart -- gall bladder -- kidneys -- appendix -- stomach --?" "No."
"(13) What medical attendance have you had in the past five years?" The plaintiff answered this naming a physician in Carrington who treated him for a carbuncle.
The evidence consists of the testimony of the plaintiff himself and Dr. Schoregge, one of the doctors who assisted in the surgical operation. The plaintiff testified that in May 1925 he had had some bilious spells and at one time he made a visit to Bismarck and called at the Quain & Ramstad clinic and one of the doctors there told him "he thought my trouble was due to the gall bladder." Later he was visiting there and the doctor said he "would like to examine me." He said they gave him some advice as to diet, but he paid no attention to their statement of the symptoms or to the instructions as to diet as he stated he considered himself in fine physical condition; that he paid no attention to it and in fact forgot that he had ever been there. He testified the reason that he stated that he had no gall bladder trouble and failed to tell about the examination at the clinic was because he had overlooked it entirely not considering there was anything to it. He also testified that there was no relationship between these bilious attacks and the subsequent operation for ulcer. Dr. Schoregge, who assisted in the operation, testified that at the time they operated for the ulcer they found the gall bladder had adhesions, but there is no connection whatever between the condition of the gall bladder and the ulcer. He told of the visits plaintiff made to the clinic prior to the application and says the clinic did not give the plaintiff any treatment of any kind in connection with the gall bladder trouble.
There are eight specifications of error. The first deals with alleged errors of the court in admitting two receipts, exhibits 3 and 4 -- the sole objection being that they are incompetent, irrelevant and immaterial, -- and certain letters, exhibits 5, 6, and 7 -- the ground being that they are incompetent, irrevelant and immaterial, unless other parts of the correspondence are also offered.
6 Jones, Ev. 4991 et seq.; Krogh v. Great West Life Assur. Co. 55 N.D. 722, 728, 214 N.W. 899; Cole v. Johnson, 103 Or. 319, 205 P. 282; Wolfe v. Scott, 275 Pa. 343, 119 A. 468; Norris v. Lynch, 26 Ga.App. 398, 106 S.E. 801. Exhibits 3 and 4 were receipts issued for premiums paid and were competent to prove payment and material to show the policy was in force. Exhibits 5, 6, and 7 were letters relating to receipts of proof of loss, and refusal to pay, were competent as being written by defendant, and were material because it was necessary to prove refusal to pay. There was no error in overruling such an objection.
Specification No. 2 deals with the sustaining of objection to certain cross-examination of the plaintiff. The defendant was questioning the plaintiff as to the diagnosis of his condition when the application was made, and tried to show his views were not in harmony with statements made by Tice on "Practice of Medicine" and Cabot on "Physical Diagnosis." The witness had not based his opinions upon the writings of these experts. The defendant attempted to introduce the statements of these authorities to contradict the opinions and answers made by the witness. Though "it is permissible . . . to cross-examine a medical expert on the theory of the medical works from which he claims to have based his opinion," yet "it is not permissible to use medical books in opposition to medical expert testimony given upon the stand for the very good reason that the authors are not under oath, are not subject to the test of a cross examination, and the defendant is entitled to be confronted with the witnesses against him." See State v. Shahane, 56 N.D. 642, 649, 219 N.W. 135; Dolan v. O'Rourke, 56 N.D. 416, 217 N.W. 667; State v. Brunette, 28 N.D. 539, 150 N.W. 271, Ann. Cas. 1916E, 340.
Specifications Nos. 3 to 7, inclusive, are based upon the making of the findings of fact, the conclusions of law, the order for judgment and the entry of judgment in favor of the plaintiff. They are all based upon the theory of lack of evidence and will be considered in connection with the 8th specification to the effect that the evidence is not sufficient to justify a verdict for the plaintiff, and that on the evidence judgment should have been directed for the defendant.
These specifications of error No. 3 to 8 are confined to the questions quoted from the application, the answers thereto, and the testimony elicited with reference to them. It is true, as defendant alleges, that the answers were not correct. The surgical operation performed on the plaintiff a year after the policy was issued shows that for sometime prior thereto he had some affection of the gall bladder and the testimony shows that this condition must have existed at the time he made his application. It is also true the plaintiff had not fully answered question No. 13. Not only had he consulted the physician at Carrington but he had been at the clinic in Bismarck nine months before the application was made. True he does not say specifically that the doctor in Carrington was the only doctor he consulted; but the answer required him to give the names of all. It is the claim of the plaintiff however, that his answers given to questions 9 and 10a were in fact true as he was answering according to his best judgment based on conditions known at that time; that he did not know of any trouble of the gall bladder; that he is a physician himself and did not attribute his bilious attacks to such source; that any statement or examination given by the Bismarck doctors was merely casual, made no impression upon his mind, did not cause him any concern and had entirely escaped his memory; and even though it may be his answers were not true nevertheless they did not amount to misrepresentations, that they were not known to be false and were not given with the intent to deceive. To this the defendant answers that these statements were made with intent to deceive and in any event the matter misrepresented "increased the risk of loss." The policy contains this provision:
"The application, a copy of which is hereinafter set out, is made a part of this policy which shall be deemed to have been issued in reliance upon the truth of the statements contained in the application."
There is nothing in the application which says the applicant warrants the truth of the statements made therein, and the policy has this provision "no statement made by the applicant for insurance not included herein shall void the policy or be used in any legal proceedings hereunder."
Section 6501 of the Compiled Laws says:
"No oral or written misrepresentation made in the negotiation of a contract or policy of insurance by the insured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increased the risk of loss."
Thus it is that every untrue statement is not necessarily material. When statements are shown to be incorrect and not literally true the burden is upon the applicant to show there was no intent to deceive and that it did not increase the risk of loss. As said in Union Indemnity Co. v. Dodd (C.C.A 4th) 55 A.L.R. 735, 21 F.2d 709. ...
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