Cunningham v. Penn Mut. Life Ins. Co. of Philadelphia, Pa

• Decision Date: 27 November 1922
• Docket Number: 23761
• Citation: 152 La. 1023,95 So. 110
• Court: Louisiana Supreme Court
• Parties: CUNNINGHAM v. PENN MUT. LIFE INS. CO. OF PHILADELPHIA, PA

95 So. 110

152 La. 1023

CUNNINGHAM v. PENN MUT. LIFE INS. CO. OF PHILADELPHIA, PA

No. 23761

Supreme Court of Louisiana

November 27, 1922

Rehearing Denied January 27, 1923

Appeal from Eighteenth Judicial District Court, Parish of Acadia Wm. Campbell, Judge.

Action by Grace Hunter Cunningham against the Penn Mutual Life Insurance Company of Philadelphia, Pa. From a judgment for plaintiff, defendant appeals.

Affirmed.

Smith &amp Carmouche, of Crowley, and Monroe & Lemann and Walter J. Suthon, Jr., all of New Orleans, for appellant.

George P. Lessley, of La Fayette, Philip S. Pugh, of Crowley, and Mouton & DeBaillon, of La Fayette, for appellee.

DAWKINS J. O'NIELL, J.

OPINION

DAWKINS, J.

Plaintiff sues upon a policy of insurance covering the life of her deceased husband. The defenses pleaded are suicide, and that deceased answered falsely certain material questions propounded in his application for insurance concerning his habits, and his having consulted physicians about his health. No serious effort was made to sustain any of these except that of the false answers to questions about consultations with doctors, and there was judgment for plaintiff, from which defendant prosecutes this appeal.

Opinion.

The policy was issued in January, and the insured died in November, 1916. In the application for insurance, he was required to answer the following questions:

"Question 11. * * * B. When were you last attended by a physician or consulted one? C. For what disease? D. Give details in full. E. Give name and residence of physician who attended you?"

His answers were:

"B. About ten years ago. C. Malaria. D. Sick two or three days -- complete recovery. E. R. E. Webb, Rayne."

The answer does not specifically allege fraud, the averments with respect to these replies being as follows:

"Now, defendant avers, upon information received by it since the death of the said Cunningham, which it believes to be true, that the answers above quoted were false and incorrect, and must have been known to the said Cunningham to be such, the fact being, as defendant is now informed and believes, that the said Cunningham had, within one or two years prior to the date of his application and the answers above quoted, suffered from and been treated by a physician for nongonorrheal prostatitis. Defendant avers that nongonorrheal prostatitis is a serious physical condition, and, if defendant had been advised thereof, defendant would, upon further examination, not have accepted the said Cunningham as a proper subject for insurance by it.

"Defendant avers, moreover, that the false and incorrect statements made by the said Cunningham in his answer above quoted were material if not fraudulent, and in law and equity discharge this defendant from all liability upon the policy of insurance procured by and upon these false and incorrect statements."

It is entirely possible for answers to such questions to be knowingly untrue from a literal standpoint, and yet not fraudulent, for the applicant may, in good faith, have considered the facts not of sufficient importance to report, especially in view of the law, as announced by the decisions of this court and sustained by the jurisprudence of the other states, to the point that inconsequential illnesses do not have to be disclosed, even though they may have occasioned the attendance of a physician. Goff et al. v. Mutual Life Ins. Co., 131 La. 98, 59 So. 28, Cole v. Mutual Life Ins. Co., 129 La. 704, 56 So. 645, Ann. Cas. 1913B, 748, and authorities cited in those cases. Nothing is charged to show that, if the information was material, deceased knew of it, or that his action was not due to honestly mistaken judgment. Fraud must be specially pleaded, and, for the reason just stated, that is, the answer does not aver the incorrect replies to have been given with a fraudulent purpose, we think the pleading falls short of the requirement of the law. 12 R. C. L. p. 416, verbo Fraud, § 164, and authorities in footnote; 3 La. Dig. p. 710 et seq. See, also, 3 Cooley's Briefs on Ins. p. 1956.

While there was no objection to the evidence which was offered on the part of defendant, to the point that fraud had not been pleaded, this has not broadened the pleading, for the reason that it was all admissible upon the question of materiality, treating the answers of the applicant for insurance as representations. Tensas Delta Land Co. v. Ferguson, 128 La. 171, 54 So. 708; Rogers v. Southern Fiber Co., 119 La. 714, 44 So. 442, 121 Am. St. Rep. 537; Bonnette v. Wise, 111 La. 855, 35 So. 953; Wortham's Civil Procedure, vol. 1, p. 255.

We conclude, therefore, that, fraud not having been alleged, the situation is the same as if the defense rested upon the ground that the answers were representations, not warranties, and avoided the policy because material to the risk, and were untrue. Act No. 52 of 1906.

It is a fact, undisputed, that deceased did, on May 30, 1914, while in the city of New Orleans taking a special course in laboratory work (being himself a physician), visit a firm of specialists in genito-urinary diseases, and, according to their office chart, supported by their oral testimony, the following conditions were recorded:

The patient "began October, 1913, feeling of pain and fullness in perineum. Then noted discharge from meatus after stool. Then slow loss of sexual power. Feels worse after intercourse. No urinary signs, save dribbling and lack of force tostream. No stomach crises. No general pains save for past two months, pains in joints of left thumb. Lack of force in ejaculation."

This constituted the history of his trouble, as reported by the patient, and, as the result of their examination, these physicians entered these notes:

"Nervous brunette. Reflexes active. Skin, mouth, glands neg. Left globe minor thickened. Test O. K. Long foreskin. No scars meatus O. K. Slight...