Ettman v. Federal Life Ins. Co.
| Decision Date | 30 August 1943 |
| Docket Number | No. 12559.,12559. |
| Citation | 137 F.2d 121 |
| Parties | ETTMAN v. FEDERAL LIFE INS. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J. L. London, of St. Louis, Mo., for appellant.
Wayne Ely, of St. Louis, Mo. (Kenneth L. Merley, of Chicago, Ill., on the brief), for appellee.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
The substantial question for decision is whether, under Missouri law, a statement in an application for a policy of limited disability insurance, without death benefits, will defeat recovery upon the policy if the statement was untrue and material but made without intent to deceive, and the insured certified to the truth of the statements made in his application, and the policy provided that "The falsity of any statement in the application, materially affecting either the acceptance of the risk or the hazard assumed hereunder, or made with intent to deceive, shall bar all right to recovery under this policy." The appeal is from a judgment for the appellee Company in an action on such a policy.
The policy was issued on January 17, 1928, upon the insured's application dated January 3, 1928. The policy provided for a monthly indemnity of $300 in case of the loss of the sight of both eyes as a result of accident or sickness.1 The insured lost the sight of both eyes in or about 1936, and thereafter demanded indemnity. The Company denied liability, and the insured brought this action. The defense asserted by the Company was, in substance, that the insured lost his eyesight as the result of a degenerative disease of the eyes known as retinitis pigmentosa; that he had this disease when he applied for the policy and had had it for many years prior thereto; that in his application he answered falsely, and with intent to deceive, certain questions; that if the Company had known that the answers were false, it would not have issued the policy; that the application was attached to and made a part of the policy; that, by the terms of the application, the insured certified that his answers to all questions contained in the application were complete and true; and that he agreed, in both the application and the policy, that the falsity of any answer made with intent to deceive or which was material should bar recovery under the policy.
The issues were tried to a jury. At the close of the evidence, both sides moved for a directed verdict. The court submitted the case to the jury. The theory upon which it was submitted is illustrated by the following portions of the court's charge:
"You will find for the plaintiff, unless you find that the plaintiff had retinitis pigmentosa on January 3, 1928, when the application for this insurance was made; and, second, that, having retinitis pigmentosa he, by his answers to questions in his application for this insurance, stated, either, first, that he did not have and never had had any disease of either eye, or any difficulty with his eyesight; or, second, that he had not within ten years consulted any physician for any disease or difficulty with his eyesight; or, third, that he had never had any serious illness except an appendectomy and herniotomy, and had not been under observation, care or treatment, except for appendicitis and hernia; or, fourth, that Dr. Hart was the last physician consulted by him; or, fifth, that he had no usual medical examiner * * * or, sixth, that he had not been in a hospital or sanitarium, asylum, or similar institution, except for appendicitis and a hernia, and if you find such facts, and if you find that such statements, if any, were actually made, and that any of them were false, and that such statements, if any, which were made were false, misrepresented some matter which actually contributed to the disability for which plaintiff seeks recovery, then you may find that the defense asserted by the defendant has been sustained.
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The insured excepted to the failure of the court to submit to the jury the issue whether the answers of the insured to the questions referred to in the charge were fraudulently made. He also excepted to the court's submitting to the jury the issue whether the answers to questions in the application relative to consulting physicians and relative to hospitalization were false and material. The basis for this exception was that, as a matter of law, the answers to such questions were immaterial.
The jury returned a general verdict for the Company. In view of the court's instructions, the verdict constituted a determination that the insured, at the time he applied for the policy in suit, had retinitis pigmentosa; that he answered falsely one or more of the questions contained in his application and referred to in the court's charge; and that the matters misrepresented by the insured contributed to the loss of his eyesight. The verdict was not a determination that the insured knew that he had any eye disease when he applied for the policy or that he was guilty of fraud in making the answers which he made. The insured moved for judgment notwithstanding the verdict and for a new trial. His motions were denied.
The main contentions of the insured are: (1) that, under the evidence and the law, he was entitled to recover; (2) that he did not warrant the truth of his answers; (3) that the Company did not plead or rely upon any warranty that his answers were true; (4) that the Company examined him and knew as much about his condition as he knew himself, and waived any physical defects.
The policy provided:
The application for the policy contained the following pertinent language:
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"16. Have you ever had or have you now any bodily or mental infirmity or deformity (including hernia and rupture) or have you impaired hearing, any disease of either eye, lost a limb or the sight of an eye, or are you in any respect maimed or in unsound condition mentally or physically? (Give particulars.) No.
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"19. Do you agree that the falsity of any answer in this application or any answer made to the Company's Medical Examiner in continuance of this application for a policy shall bar the right to recover thereunder if such answer is made with intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the Company? Yes.
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"I hereby certify that before signing I have read the above statements and answers and find each of them recorded as made by me, and that each of the answers made by me as stated in Parts I and II of this application are full, complete and true."
The application was signed by the insured and witnessed by John C. Salter, the Company's medical examiner, and a copy of it was attached to the policy.
The evidence showed that the insured had retinitis pigmentosa at the time he applied for the policy; that he had had this disease for many years prior thereto; that his vision had been seriously affected by it; that when he was approximately sixteen years old, in the year 1911, he had been taken by his mother to Doctor Meyer Wiener, of St. Louis, an eminent specialist in diseases of the eye, because the insured, who was then attending school, was unable to see the writing on the blackboard; that Doctor Wiener discovered that the insured had retinitis pigmentosa, but, at his mother's request, did not disclose that fact to him; that the Doctor knew that the insured would eventually lose his eyesight, but did not tell the insured and doubts whether the insured knew it. The evidence also showed that the eye condition caused by...
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