Dinkins v. American National Ins. Co.

• Decision Date: 26 March 1979
• Citation: Dinkins v. American National Ins. Co., 92 Cal.App.3d 222, 154 Cal.Rptr. 775 (Cal. App. 1979)
• Parties: George R. DINKINS, Plaintiff and Respondent, v. AMERICAN NATIONAL INSURANCE COMPANY, Defendant and Appellant. Civ. 16665.
• Court: California Court of Appeals

Page 775

154 Cal.Rptr. 775

92 Cal.App.3d 222

George R. DINKINS, Plaintiff and Respondent, v. AMERICAN NATIONAL INSURANCE COMPANY, Defendant and Appellant.

Civ. 16665.

Court of Appeal, Third District, California.

March 26, 1979.

Coben, Cooper & Zilaff and Melvyn J. Coben, Sacramento, for plaintiff and respondent.

Diepenbrock, Wulff, Plant & Hannegan, Sacramento, Lascher & Wilner and Edward L. Lascher, Ventura, for defendant and appellant.

JANES, Associate Justice.

Defendant appeals from the judgment in an action brought by its insured, plaintiff George R. Dinkins. The judgment, entered upon the jury's special verdicts, awarded plaintiff (1) $1,000 the face amount of the subject insurance policy; (2) $25,000 as damages for emotional and mental distress; and (3) $25,000 in punitive damages. The judgment further reflected the jury's special finding exonerating defendant from allegations of fraud and also included an award to plaintiff of $2,750 for attorney fees, that award pursuant to a stipulation that the trial judge would determine whether attorney fees were to be awarded and, if so, the reasonable amount thereof.

The policy in question was a family life policy naming as insureds plaintiff and five of his eleven children, including his daughter Glinda Ann. The policy provided for payment to plaintiff in the amount of $1,000 upon Glinda Ann's death. Glinda Ann died of gunshot wounds during the contestable period of the policy term. Plaintiff's claim on the policy was denied, the company contending it was entitled to rescind the policy because of concealment or misrepresentation of material fact by plaintiff with respect to the state of Glinda Ann's health at the time the policy application was completed.

FACTS

Plaintiff George Dinkins, approximately fifty years of age, had been a scrap dealer since 1963. In addition to his earnings from that occupation, his only other income was a government disability pension received because of injuries incurred in the service. He had fathered eleven children, and in May 1974, the time of application for the subject insurance policy, six or seven of them were living with him. Five were under the age of eighteen, and thus qualified for coverage under the children's term rider offered by defendant. The premium for the policy insuring the life of plaintiff for $3,000 was $13.63 a month. The additional premium for the children's term rider was $1 per month. The policy was issued June 5, 1974, and was based on an application signed by plaintiff on May 2, 1974.

The application around which this dispute centers was completed in the course of at least two meetings between plaintiff and various of defendant's agents. Mrs. Wilma Salamone, the agent of defendant who signed plaintiff's application form as witness and soliciting agent, testified that the information on the form had been previously written in by defendant's agent Leonard Palaca. On May 2, 1974, when she went to plaintiff's home with John Carmichael, another agent, Carmichael handed her the virtually complete application for her to finish, have signed, and witness. The application had not yet been signed by plaintiff nor accepted by defendant's agent because plaintiff did not earlier have money for the premium.

Questions 19 through 22 of the application deal with the medical history and health of the proposed insureds under the policy. Question 19 specifically asked whether any proposed insured (had):

"(a) Any abnormality, deformity, disease or disorder, or is any proposed insured presently receiving treatment or taking medicine of any kind?

"(b) Ever had a surgical operation or been advised to have an operation which was not performed

"(c) Ever made claim for or received any insurance benefit, compensation or pension, governmental or otherwise, on account of an injury or sickness?

"(d) Ever had an x-ray, electrocardiogram, blood or urine test, or other laboratory tests? If 'Yes', state why, when, where and by whom.

"(e) Any impairment of sight or hearing?

"(f) Ever been under observation or treatment in any hospital, sanitarium, clinic or rest home?

"(g) Ever received treatment or joined an organization for alcoholism or drug addiction?

"(h) Ever, for physical or mental reason, been rejected or discharged from any branch of military service?

"(i) Ever had or been treated for high or low blood pressure, chest pain or for sugar in the urine?

"(j) Consulted or been treated or examined by any physician or practitioner for any cause not previously mentioned in the application?"

The completed application contains a negative response to every subsection of question 19.

The testimony of those of defendant's agents involved in the elicitation of answers for the application was uniformly to the effect that plaintiff was specifically asked every question with respect to each proposed insured, and that his answer to each question was an unqualified negative. Plaintiff's testimony, on the other hand, is riddled with inconsistencies and contradictions. On direct examination plaintiff testified that he was not told that the health questions were to be answered with reference to each of the proposed insureds. He testified, however, that he asked Mr. Carmichael, the agent present at that time whether Glinda would have to have a physical because she had been in the hospital for the birth of her two children, and was told that it would be unnecessary since she was under the age of eighteen. He further stated that with respect to his own health, he told Carmichael he had just had an operation to remove a cyst and was receiving a government disability pension. The application form signed by him reflects none of the information he claimed to have given Carmichael.

When asked whether he knew that Glinda Ann had been taken to the Sacramento Medical Center Emergency Room shortly before the time of application, plaintiff recalled that his wife mentioned to him that Glinda had had some sort of stomach trouble. On cross-examination, plaintiff denied being asked any questions by defendant's agents about the health of his children. In an earlier deposition, however, he had stated that he was specifically asked these questions as to each of his children, and had replied that each was in good health. When faced with his deposition testimony he responded that he had been asked about his children's health, and had answered that only one had been in the hospital and that was Glinda Ann who was hospitalized for childbirth. He was then asked whether he had said anything about Glinda Ann having been taken to the Medical Center; his reply was "I couldn't say what I don't know." Upon being asked whether that meant he had disclosed that Glinda Ann had been seen in the emergency room, he replied "If they asked that question, I told them." He was then asked specifically whether he had told anyone of Glinda Ann's visit to the hospital. He again replied that if they asked him he had told them, and when the question once again was put to him, he replied, "I don't remember."

As his cross-examination continued, plaintiff reiterated his earlier statement that he had never been asked health questions with respect to the children. He also retreated somewhat from his earlier testimony that he had told defendant's agents of His own medical problems, taking the position that he had only told them if they had asked him, and that he couldn't recall whether he had been asked. ¹

Returning to Glinda Ann's emergency treatment shortly before the policy application was completed, plaintiff testified at trial that he knew she had been taken to the hospital but understood that there was nothing wrong with her. Again, his deposition testimony was introduced where, in reply to questions about Glinda's emergency treatment, he stated that he knew she had gone both to Community Hospital and to the Medical Center in connection with her complaints of dizzy spells. He insisted that he didn't know that Glinda Ann had been taken to the emergency room three times in a period of less than 24 hours, but admitted that his wife had told him Glinda Ann was sick and that she had taken her to the hospital around midnight. He testified that he talked to the doctor the day after she was taken to the hospital and was told nothing was wrong with Glinda Ann.

Continuing on the subject of Glinda Ann, on further cross-examination, he did know that she had been taken to the hospital from juvenile hall on one occasion, possibly in early 1974, because of stomach trouble. He reiterated his awareness that his wife's trip to the Medical Center with Glinda Ann involved dizzy spells. The stomach pains previously referred to, he later stated, related to the juvenile hall episode rather than the midnight hospital visit. When specifically asked whether he disclosed to anybody that Glinda Ann had been taken to the hospital in 1974 because of stomach problems, he replied, "Maybe I said that. I'm not for sure." When pressed further, he replied that he "probably" made that statement. Further attempts by counsel to clarify plaintiff's testimony reveal that if he had told anyone of hospital treatment of Glinda Ann, it could only have been with reference to her two childbirth confinements.

Because of the policy amount and plaintiff's age, defendant's rules required that plaintiff have a medical examination. At defendant's request, a bio- medical technician visited plaintiff, examined him and questioned him concerning his medical history. In addition to his medical history, plaintiff informed the technician also of his disability pension from the government.

In connection with the information about Glinda Ann's two childbirths, not reflected on the policy application for the policy presently in issue, defendant's agents had available to them a computerized "life register" record which, had it been checked, would have revealed policies earlier issued by the company to Glinda Ann. The applications...