Chamberlain v. National Life & Acc. Ins. Co.

• Decision Date: 30 November 1934
• Citation: 76 S.W.2d 628,256 Ky. 548
• Parties: CHAMBERLAIN v. NATIONAL LIFE & ACCIDENT INS. CO.
• Court: Kentucky Court of Appeals

76 S.W.2d 628

256 Ky. 548

CHAMBERLAIN v. NATIONAL LIFE & ACCIDENT INS. CO.

Court of Appeals of Kentucky

November 30, 1934

Appeal from Circuit Court, Hopkins County.

Action by Anna Chamberlain against the National Life & Accident Insurance Company. From a judgment dismissing her petition plaintiff appeals.

Affirmed.

Chas G. Franklin, of Madisonville, for appellant.

White &amp Clark, of Hopkinsville, and Gordon & Gordon & Moore, of Madisonville, for appellee.

DRURY Commissioner.

Appellant sought to recover of the appellee $2,000 upon a policy of insurance issued upon the life of her husband with her as beneficiary, her petition was dismissed, and she appeals.

The issue of the policy and the payment of the premiums are admitted. The insurance company offered to return the premiums and refused to pay this claim because the policy was procured, so it says, by misrepresentations in the application made by the insured, consisting both in false answers given and in willful failures to disclose the truth, in answer to these questions: "Have you ever had any ailment or disease of the heart or lungs? Have you ever had any ailment or disease of the skin, middle ear or eyes? Have you ever consulted a physician for any ailment, or disease, not included above?" It is alleged that he answered the first question, "No," and the second question, "No," and to the third question he made the following answer: "Measles in the year 1918, scarlet fever in the year 1918, influenza in the year 1917, cold in the year 1932. Saw Dr. Baumer, Detroit, once a week ago for a cold, over it now, but have not yet returned to work."

The Facts.

On April 11, 1932, Chamberlain signed an application for this insurance but he did not submit himself for examination that day. Three days later he saw Dr. Baumer of Detroit, Mich., who now testifies: "He stated that for the preceding three weeks he had had a persistent cough which did not respond to the ordinary medicines, which he had used; that three days previous to his coming to my office he had developed pain in his right ear, he had lost some weight and felt weak. *** He was complaining of a discharge from his right ear, which examination showed to be a right otitis media (inflammation of the middle ear). There was a dullness on percussion and a few rales heard in his left chest, which I diagnosed as possible tuberculosis and advised him to have an X-ray and sputum examination made to ascertain the presence or absence of pulmonary tuberculosis. Mr. Chamberlain did not seem to take my suggestion very seriously and my own impression is that he never believed there was anything seriously wrong with him." These questions and answers in Dr. Baumer's deposition are quite important:

"Q. Was Everett Hardin Chamberlain suffering from a cold at the time he consulted you on April 14, 1932? A. That might have been his impression, but he was never given to understand that it was just an ordinary cold. ***

Q. Did he know on the 19th day of April, 1932 that you had examined him and found five days previously that he had a possible pulmonary tuberculosis involving his left chest? A. Yes. ***

Q. Is it not true that when you suggested to Mr. Chamberlain that he have an X-ray examination and sputum tests made, that he did not take this advice seriously and that he did not believe there was anything seriously wrong with him? A. Possibly so. At least that was my impression of his attitude."

With this information in his breast, Mr. Chamberlain five days later submitted himself to the defendant's medical examiner, who propounded to him a number of questions, among which were the ones we have noted above, and again Mr. Chamberlain signed the application for this insurance.

The next we hear of Mr. Chamberlain is contained in this which is taken from the evidence of Dr. Baumer: "He was not seen again until July 10, 1932, when he came in complaining of similar trouble as on the previous visit." Chamberlain continued to work until December 11, 1932, and was for part of the time apparently in good health.

Dr. John Maloney testifies he saw Mr. Chamberlain professionally on December 17, 1932; that he was then suffering from pulmonary tuberculosis of approximately seven or eight months' standing, was short of breath, unable to speak above a whisper, etc.

Dr. Albert Krohn, the superintendent of the general hospital at Detroit, testified he saw Mr. Chamberlain on December 29, 1932; that he found him suffering from acute tuberculosis, chronic right otitis media, and chronic mastoiditis, and that Chamberlain died at the hospital February 6, 1933; that while Chamberlain was at the hospital this history was obtained from him: "Illness dated back to April, 1932, at which time patient complained of stuffy sensations in both ears and pain over antrums and frontal sinuses. Was examined by various physicians and irrigations instituted but no improvement. Around October patient noted loss of weight, cough and fever. This became worse. His right ear discharged. A physician advised Herman Keifer for X-ray. Patient has coughed up blood streaked sputum several times in past two weeks. Since onset has had frequent night sweats. Lost 30 lbs. Appetite poor. Cough is disturbing. Has had gastro-intestinal upset past two weeks and vomits occasionally. *** He complained of pain in the right ear; examination revealed an old discharge from right ear while the mastoid region was tender to touch."

It is stipulated that the insured submitted himself to Dr. H. A. Bush of Detroit, Mich., a physician selected by the National Life & Accident Insurance Company, on the 19th day of April, 1932, for examination, and that he was examined on said date by the said physician, who was a regular examiner for said company, who propounded to him the questions set out in said application, and who examined him in the way usual for medical examiners in their examination of applicants for life insurance, and that said examining physician did not discover any evidence of otitis media or pulmonary tuberculosis.

The Law in This Case.

This policy was issued and delivered in Michigan, where Mr. Chamberlain was living; hence this litigation must be governed by the laws of that state, and it was proven that this is the law there. Comp. Laws 1929, § 12444: "The falsity of any statement in the application for any policy covered by this chapter shall not bar the right to recovery thereunder unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer." Compare this statute with our section 639, Ky. Stats.

That this Michigan statute has been construed in the following cases by the Supreme Court of Michigan: Krajewski v. Western & Southern Life Ins. Co., 241 Mich. 396, 217 N.W. 62; Business Men's Assurance Co. v. Marriner, 223 Mich. 1, 193 N.W. 907; Mutual Life Ins. Co. of New York v. Geleynse, 241 Mich. 659, 217 N.W. 790, 56 A. L. R. 702; Bellestri-Fontana v. New York Life Ins. Co., 234 Mich. 424, 208 N.W. 427; Nat'l Life & Accident Ins. Co. v. Nagel, 260 Mich. 635, 245 N.W. 540; Bonewell v. North American Accident Ins. Co., 167 Mich. 274, 132 N.W. 1067, Ann. Cas. 1913A, 847; Security Life Ins. Co. v. Schwartz, 221 Mich. 496, 191 N.W. 216; Continental Casualty Co. v. Winsor, 258 Mich. 118, 241 N.W. 826.

We have construed our statute in Nat'l Life & Accident Ins Co. v. Fisher, 211 Ky. 12, 276 S.W. 981, 982, to mean: "If a representation is made, and it is untrue and material, it taints the contract whether fraudulent or not, and, if untrue and fraudulent, it taints the contract whether material or not." The Michigan statute is given that same construction by the courts of that state, for it is proven in this case that it is construed to mean: "Misrepresentations, if innocently...