Chadwick v. Beneficial Life Ins. Co.

• Decision Date: 30 April 1920
• Docket Number: 3406
• Citation: 191 P. 240,56 Utah 480
• Court: Utah Supreme Court
• Parties: CHADWICK v. BENEFICIAL LIFE INS. CO

191 P. 240

56 Utah 480

CHADWICK v. BENEFICIAL LIFE INS. CO

No. 3406

Supreme Court of Utah

April 30, 1920

On application for rehearing, July 22, 1920.

Appeal from District Court, Second District, Weber County; J. D Call, Judge.

Action by Maud Chadwick against Beneficial Life Insurance Company. Judgment for plaintiff, and defendant appeals.

REVERSED and REMANDED.

Young &amp Young, of Salt Lake City, for appellant.

A. G Horn, of Ogden, for respondent.

CORFMAN C. J. FRICK, J., THURMAN, J., GIDEON, J., concurring. WEBER, J., dissenting.

OPINION

CORFMAN, C. J.

Plaintiff brought this action in the district court of Weber county to recover a judgment against the defendant on a life insurance policy issued by the defendant upon the life of her husband, J. Charles Chadwick, wherein she was named as the beneficiary. The policy was issued June 1, 1916, and attached thereto and expressly made a part thereof was a copy of the signed application of the insured, J. Charles Chadwick, dated May 29, 1916, containing the purported questions propounded by the defendant's medical examiner to, and the answers made by, the applicant. In compliance with Comp. Laws Utah 1917, section 1154, subd. 3, the policy contained the provision that "all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid or be used in defense under the policy unless it is contained in the written and printed application and a copy of such application is indorsed on the policy issued."

In so far as may become material for a proper consideration of the issues involved in this case the signed application indorsed or attached to and made a part of the policy contains these express agreements on the part of the insured:

"I hereby declare and agree that I am now * * * in good health, and ordinarily have good health, and that in my statements and answers in this application, and to the medical examiners, no information has been or will be withheld touching my past and present state of health * * * with which the Beneficial Life Insurance Company should be made acquainted; and that the statements and answers to the printed questions above, together with this declaration, as well as those made by the company's medical examiner, shall constitute the application and be the basis of this contract."

Also:

"I hereby agree that the foregoing statements made to the company's medical examiner are a part of my application for insurance, are declared to be true, and offered to the company as a consideration for the contract."

The insured, J. Charles Chadwick, died August 13, 1916, and thereupon, after refusal of the defendant company to pay the death loss under the policy, the beneficiary commenced this action in the usual form.

The case has been twice tried before a jury in the district court, and this is the second appeal to this court. The first appeal was by the plaintiff from a judgment entered upon a directed verdict in defendant's favor. We reversed that judgment, and ordered that the plaintiff be granted a new trial. Chadwick v. Beneficial Life Ins. Co., 54 Utah 443, 181 P. 448. A new trial being granted, the defendant applied for and was granted permission to amend its answer, which as amended, after admitting the issuance and delivery of the policy, the death of the insured, and its refusal to make payment, sets up the following defenses:

"(1) That the said policy of insurance was issued by this defendant and accepted by said Chadwick in the following express condition and agreement contained in said policy and made part of said contract of insurance, to wit: That the statements and answers contained in the application for insurance and in answer to the medical examiner of the defendant company, and on the faith of which said policy was issued, were in all respects true, and that no information had been withheld touching the past or present state of health of the applicant with which the defendant company should have been acquainted; and upon the further consideration, to wit, that the answers and statements so made in said application and to the medical examiner, together with the declaration contained in the said application form, should constitute the application, and be the basis of the contract between said Chadwick and the defendant company.

"(2) That the said Chadwick violated the conditions contained in said application form, and on faith of which the said policy of insurance was issued, in that he stated therein that he was in good health at the time of making application for insurance to the defendant company; and that, further, the said Chadwick in answer to said question No.11 of the questions submitted to him as aforesaid by the medical examiner of the defendant company, to wit, 'Are you in good health so far as you know or believe?' answered, 'Yes;' whereas, the said Chadwick at the time was, and for some time prior to applying for insurance to the defendant company had been, suffering with a disease which tended to prejudicially influence his health and impair his longevity, and from which disease the said Chadwick in fact died on or about the 13th day of August, 1916; and that at the time that the said Chadwick made his aforesaid application for insurance and answered the said question No.11 submitted to him by the defendant's medical examiner as aforesaid the said Chadwick knew, or had reason to believe, that he was not in good health, and was afflicted with a disease which tended to prejudicially influence his health and impair his longevity.

"(3) That the said Chadwick further violated the conditions contained in said contract of insurance in that in the answer made to question No.6 contained in the statement made to the medical examiner of the defendant company as aforesaid, which question reads as follows, to wit: 'Give name and address of physician last consulted,' the said Chadwick answered, 'None;' whereas, in fact, within the space of a few weeks prior thereto, he had consulted doctors at Afton, Wyoming, and at Ogden, Utah, in regard to the disease with which he was at such time afflicted and from which he died.

"(4) That the said Chadwick further violated the conditions contained in said contract of insurance in that in the answer made to R of question No.5 contained in the statement made to the medical examiner of the defendant company as aforesaid, which question reads as follows, to wit, 'Have you ever had any of the following diseases? Of each illness state date, number of attacks, duration, severity, complications, and result, thus avoiding correspondence and delay. R. Rheumatism or gout'--the said Chadwick answered, 'No;' whereas, in fact, the said Chadwick was at such time suffering with a disease which he believed, or had reason to believe, tended to prejudicially influence his health and impair his longevity, and which, as the result of the opinion expressed to him by his physician, the said Chadwick then believed to be rheumatism."

Upon submission of the case to the jury on the second trial the defendant again moved the district court for a directed verdict in its favor, which was denied. The jury then returned a verdict in plaintiff's favor, and judgment was entered thereon against the defendant for the amount of the policy, interest and costs. Motion for new trial was made and denied. Defendant appeals, and assigns as errors: (1) The denial of defendant's motion for a directed verdict; (2) the refusal to charge the jury as requested by defendant; (3) denial of motion for new trial; (4) that the evidence was insufficient to support the verdict, and that the judgment is contrary to law.

Briefly stated, the testimony shows that the insured had been a rancher by occupation, strong and vigorous until on about February 1, 1916, when he became afflicted with some malady causing him pains in the back. He then resided at Afton, Wyo., where he consulted a physician, one Dr. Reese, who diagnosed the case and treated and advised with him about twice a week from February 1st until about the middle of March for what was supposed to be rheumatism. The malady did not yield to the treatment of Dr. Reese, and the health of insured became so seriously impaired that he could not perform his customary labors without resulting pain and distress. About the latter part of March the insured went to Ogden, Utah, and did not return to Afton until about July 1st. While at Ogden he was attended by Dr. Rich, who treated him and placed him in a plaster cast, which he was wearing on his return to Wyoming in July. He continued to grow worse, and finally died August 13th. After death an autopsy was performed on the body by Dr. Reese, who found and testified that the insured had died of tuberculosis of the spine. On the 29th day of May the insured made application for a life insurance policy to the defendant, in which application he expressly agreed and declared:

"I am now in good health, and that in my statements and answers in this application and to the medical examiner no information has been or will be withheld touching my past and present state of health * * * with which the Beneficial Life Insurance Company should be made acquainted."

As appears from the application, among other questions asked of the insured by the medical examiner were the following:

"Q. Have you ever had any of the following diseases? * * * R. Rheumatism or gout? A. No. Q. Give name and address of physician last consulted. A. None. Q. Are you in good health, so far as you know or believe A. Yes."

The physician, Joseph R. Morrell, who conducted the medical examination, testified that the foregoing questions were propounded to the insured, and that the answers made were...