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

• Decision Date: 13 November 1911
• Docket Number: 19,060
• Court: Louisiana Supreme Court
• Parties: COLE v. MUTUAL LIFE INS. CO. OF NEW YORK. In re MUTUAL LIFE INS. CO. OF NEW YORK

56 So. 645

129 La. 704

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

In re MUTUAL LIFE INS. CO. OF NEW YORK

No. 19,060

Supreme Court of Louisiana

November 13, 1911

Rehearing Denied December 11, 1911.

Action by Mrs. Jessie A. Cole against the Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant applies for review. Application dismissed.

J. E Reynolds and Denegre & Blair, for applicant.

Barnette Roberts & Goff, for respondent.

OPINION

PROVOSTY J.

The son of plaintiff insured his life in her favor in the defendant company for $ 1,000 on September 2, 1903. He paid five yearly premiums, but failed to pay the sixth, falling due September 2, 1908; and, the 30 days of grace within which to make the payment having passed without his having availed himself of it, the policy lapsed on October 2, 1908. Four days thereafter he made application for reinstatement, and the policy was reinstated. He died four months thereafter, on February 4, 1909, of tubercular laryngitis. This suit is upon the policy.

There is no positive proof of the cause of his death; but the fact of its having been as here stated seems to have been taken for granted throughout the trial, and the inference in that regard is so strong as to amount to sufficient proof, and, moreover, plaintiff has laid no stress on the absence of this proof, though incidentally calling attention to it.

The application for reinstatement was made on the printed form of the defendant company, which contains the following:

"And the undersigned hereby ratifies and confirms all the statements made in the application upon which said policy was issued, and hereby makes the said application and this request alike part of the said contract of insurance, and further guarantees that he is of temperate habits, and that, except as noted below, his health has been good and has remained unimpaired at all times since the last examination for policy No. 1,384,385; that he has not consulted a physician since that time, and his family record has remained the same."

The exception noted below is as follows:

"The only time had a physician was last fall while had measles and mumps."

Defendant, not being domiciled in the parish of Bienville, where the assured resided and died and where this suit was brought, but in the parish of Orleans, where it has a resident agent, pleaded to the jurisdiction of the court ratione personae, and pleaded, further, that the fact of the court of Bienville parish not having jurisdiction of the suit was res judicata, it having been so decided on a previous occasion, when the same suit was brought in the same court, and a plea to the jurisdiction was interposed and sustained.

A complete answer to that contention is that, since the dismissal of the said previous suit, Act 44, p. 69, of 1910, has been passed, which provides that:

"In all suits on a policy of insurance the defendant may be sued either at the domicile of the insurance company, or in the place where its principal agency is established, or in the parish where the loss occurred, or in the case of life insurance, at the domicile of the deceased, or beneficiary whether it be in a case of fire, marine or life insurance."

Said pleas were therefore properly overruled.

On the merits, the contention of the defendant is that the statements made by the assured in his application for reinstatement, to the effect that, "except as noted below, his health has been good and has remained unimpaired since the last examination for policy No. 1,384,385," and that "he has not consulted a physician since that time," were false, and have had the effect of avoiding the policy.

This raises a question of fact, for the determination of which an examination of the facts is necessary.

Both the district court and the Court of Appeals found against defendant upon the facts; or, in other words, found that the said statements of the assured were true.

Mrs. Cole, the plaintiff, testifies that her son was taken with the measles in November, 1907; that the attack lasted two or three weeks; that he was up and out of his room in December, and entirely well in January, except that the measles seemed to have settled on his throat; that there were "little kernels that never did entirely go away"; that no remedy was used for these kernels; that he seemed to be entirely well, and made no complaint; that he was well the whole year, and worked all the time, and did not consult a physician until the last of November, 1908, when he began to complain of his throat, and consulted Dr. McLemore, who advised him to see a specialist.

Mrs. Cole, widow of the assured, testified that her husband died February 4, 1909, a little over three months after her marriage; that until the latter part of November, 1908, he was in good health; that the first intimation she had of his throat being sore was in the latter part of November, when he complained of it.

J. D. Cole, an uncle of the assured, testified that he was a neighbor of his nephew, and saw him nearly every day, that all during the spring and summer of 1908 his nephew worked in the field and at hauling logs, and appeared to be as healthy as any man in the country, and made no complaint of not feeling well.

S. M. Emerson, the man in charge of the commissary of the sawmill for which the assured was hauling logs, testified that during the summer of 1908, after the assured got through with his crop, he saw him every day until "along up in the fall," and that he had the appearance of a healthy man; that logging is very heavy work, and takes a strong, healthy man.

Dr. McLemore testified that he attended the assured as his physician in the spring of 1908; that he was suffering from measles and mumps; that he recovered within 15 or 20 days, with the exception of some swelling of the glands of the throat; that, after the assured was up from his attack of measles and mumps, he treated him for a hacking cough, and for the swelling of the glands of the throat; that something like two months after he had got up he consulted him about the condition of his throat, and also as to his hacking cough; that he thinks he examined him three times during the summer of 1908; that in September he advised him to consult a specialist; that he is not positive about the date, as he is testifying only from memory, his books having been lost; that his reason for advising him in September to consult a specialist was that he did not improve under his treatment; that from the time he convalesced thoroughly from the measles until December, 1908, when his general health began to fail, his general health was good, and he considered him a good risk for insurance; that he was not hoarse, and his speech was unaffected; that he examined him at the time of the reinstatement of the policy, and reported his general health and physical condition good; that the condition of his throat had in no way impaired his health so far as he, witness, could detect; that he simply had a sore throat which he, witness, diagnosed as a catarrhal condition of the throat.

In addition to this testimony of Dr. McLemore, there is in the record the following letter written by him to the agent of the defendant company on March 25, 1909, shortly after the death of the assured:

"Dear Sir: I hereby certify that I was the original medical adviser of W. Walter Cole, and I attended him in the spring of 1908 for measles, after which he developed this tuberculous condition of the throat which I prescribed for him at intervals during the summer, and advised him to consult a specialist in September of the same year.

"Respectfully,

A. C. McLemore, M. D."

Referring to this letter, Dr. McLemore says in his testimony:

"This letter is correct, but misleading in this: During the time I was treating Cole, in the summer of 1908, I had not diagnosed his case as tuberculous; but was treating him for mere inflammation of the throat, which I learned afterwards through the specialist, was tuberculous. This information was obtained through the...