Flannagan v. Mutual Ins. Co.

• Decision Date: 17 January 1929
• Citation: 152 Va. 38
• Parties: ROY C. FLANNAGAN, ADMINISTRATOR, ETC. v. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY.
• Court: Virginia Supreme Court

Page 38

152 Va. 38

ROY C. FLANNAGAN, ADMINISTRATOR, ETC. v. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY.

Supreme Court of Virginia, Richmond.

January 17, 1929.

Absent, Chichester, J.

1. LIFE INSURANCE — Medical Examination — Two Policies Issued About a Week Apart — Copy of Medical Examination made at Time First Policy was Issued made Part of Second Policy — Case at Bar. — The instant case was an action on life insurance policies. At the time the first policy was issued a medical examination was made of insured. A week later insured applied for another policy and it was not deemed necessary to make any re-examination, insured saying that his health was still good. To the second policy was attached a copy of the medical examination made at the time of his application for the first policy, and the attached copy was made a part of the second policy. Plaintiff claimed that these two policies so far as the medical examination was concerned and insured's answers stood upon different footings, and that even if the first policy should be set aside because of misstatements by insured, such defense would not apply to the second, for when it was issued no examination was had at all.

Held: That there was no merit in plaintiff's contention.

2. APPEAL AND ERROR — Rule of Decision in Appellate Court as on Demurrer to the Evidence — Construction of Section 6363 of the Code of 1919 — Judgment in Support of Verdict. — Section 6363 of the Code of 1919, when read in connection with section 6251, plainly refers to judgments in support of verdicts, and should be so construed. Under section 6363 occasions may arise in which the doctrine that the rule of decision in appellate courts is the same as that applicable to a demurrer to the evidence should not be applied.

3. JUDGMENTS AND DECREES — Judgment Non Obstante Veredicto — Section 6251 of the Code of 1919. — Under section 6251 of the Code of 1919, providing that when the trial court sets aside a verdict as contrary to the evidence or without evidence to support it, final judgment may be entered by the trial court if there is sufficient evidence before the court, substantial conflicts in testimony must be submitted to a jury, but where there is no real conflict, juries should decide questions of fact in accordance with the testimony submitted.

4. APPEAL AND ERROR — Rule of Decision in Trial and Appellate Courts as on Demurrer to the Evidence — Section 6363 of the Code of 1919 — Judgment Non Obstante Veredicto — Section 6251 of the Code of 1919. — Broadly speaking, section 6363 of the Code of 1919 deals with the power of the appellate court, section 6251 of the Code of 1919 with the power of trial courts. If the demurrer rule does not in strictness apply to the Supreme Court of Appeals, then for a stronger reason it should not apply to the court below. A judge who saw and heard the witness can weigh his evidence more understandingly than can a court which takes it upon the printed record. Certainly his judgment is worth something, and the same reasoning gives to a verdict approved weight which does not attach to one stamped with the disapproval of the trial judge.

5. JUDGMENTS AND DECREES — Judgment Non Obstante Veredicto — Action on Life Insurance Policy — Misrepresentations by Assured — Case at Bar. — The instant case was an action on life insurance policies. There was a verdict for plaintiff which was set aside by the court and final judgment entered for the defendant under section 6251 of the Code of 1919. Insured in his examination said that he had last consulted a physician in 1918, and was last confined in the house by illness in the same year, and that he had never suffered from mental derangement or any nervous disease. The evidence showed without any serious controversy that from 1918 to 1924, when the policy was issued, insured had suffered a number of nervous breakdowns, and upon advice of his physician took several long vacations on account of them, and finally placed himself under the care of a nerve specialist.

Held: That there was no error in the action of the trial court in setting aside the verdict of the jury and entering judgment for the defendant, as the facts about which there was no substantial dispute sustained the action of the trial judge.

6. LIFE INSURANCE — Medical Examiner — Answers not Recorded Exactly. — In the instant case, an action on life insurance policies, it was argued that applicant's answers in his medical examination were not in every instance recorded exactly as made by the medical examiner. In all the history of life insurance, it is doubtful if any applicant said nothing to his examiner beyond what was actually written into his report, and if a failure to record everything that was said in ipsissimis verbis, constitutes error, the door is opened wide.

7. LIFE INSURANCE — Medical Examiner Agent of Company — Company Charged with Knowledge Imparted to Medical Examiner — Answers Construed as Written. — The medical examiner is the agent of his company, and he and it are charged with information imparted to him in the scope of his employment. However, when answers are transcribed in good faith, and in substance as the examiner understood them, and when their correctness had been certified to by the applicant, they must be construed as written.

8. LIFE INSURANCE — Medical Examination — Duty of Insured to Read Application. — It is the duty of insured to read the application which he signs and he is charged with notice of what it contains.

9. INSURANCE — Representations — Statement Material to the Risk — Test of Materiality — Section 4220 of the Code of 1924. — Under section 4220 of the Code of 1924, a fair test of the materiality of a fact is found in the answer to the question, whether reasonably careful and intelligent men would have regarded the fact communicated at the time of effecting the insurance as substantially increasing the chances of the loss insured against so as to bring about a rejection of the risk or charging an increased premium.

10. INSURANCE — Representations — Materiality — Questions of Law and Fact. — Whether a representation is made and its terms are questions of fact for the jury, but when proven its materiality is a question for the court.

11. LIFE INSURANCE — Medical Examination — Understanding of Questions by Insured — Questions Plain on their Face. — The insured is not required to do more than to answer questions truthfully and as he understands them, but he cannot be heard to say that he did not understand questions plain upon their face.

12. LIFE INSURANCE — Medical Examination — Ambiguity or Confusion in Examination — Case at Bar. — In the instant case applicant for life insurance was asked: "When did you last consult a physician and for what?" He answered: "As in A." In A he was asked when he was last confined to the house by illness. He answered: "In 1918." He was asked if he suffered from any nervous disease and he answered: "No." No man of ordinary intelligence could misunderstand what was asked for and the conclusions to be drawn from the answers are likewise clear. The applicant was a man of more than ordinary intelligence.

Held: That there was nothing misleading, ambiguous or confusing in the questions and answers.

13. LIFE INSURANCE — Medical Examination — Materiality of Failure to Disclose Prior Illness — Case at Bar. — In the instant case, an action on life insurance policies, the insured from the year 1918, given as the date of his last illness, to the date of his death seemed to be in good health and did his work to the satisfaction of his employer, with the exception of several nervous breakdowns, one of which caused him to consult a nerve specialist. The policy in question was taken out in 1924, and his answers on his medical examination did not reveal these nervous breakdowns. If the situation had been revealed to the insurance company, it would either have rejected the risk or made an independent examination.

Held: That the company was entitled to an opportunity to make such an examination, and the concealment of facts which would have put it on notice was a concealment of facts material to the risk.

14. LIFE INSURANCE — Medical Examination — Failure to Disclose Prior Illness — Case at Bar. — In the instant case, an action on life insurance policies, insured on his medical examination failed to disclose several prior nervous breakdowns. Whatever he had incapacitated him for work in 1919. The trouble reappeared in 1920, and in the latter part of 1922, and in the early part of 1923 it again manifested itself in more aggravated form, and the recrudescence of this neurotic condition in 1925 led to his permanent retirement on a pension.

Held: That there was no merit in the contention that on these occasions applicant was merely in a nervous condition and was affected by no nervous illness or disease.

15. LIFE INSURANCE — Suicide — Facts Pointing to Suicide where Insured had Failed on His Medical Examination to Disclose Prior Nervous Breakdowns — Case at Bar. — While in the instant case the jury by its verdict had found that the insured did not commit suicide, and the Supreme Court of Appeals was bound by that verdict, still evidence tending to show that insured might have committed suicide emphasized the necessity for disclosure by insured of recurrent nervous attacks, or of neurotic symptoms.

16. APPEAL AND ERROR — Assignment of Error as to Admission and Exclusion of Evidence by Plaintiff where Verdict for Plaintiff was Set Aside — Case at Bar. — In the instant case, an action on life insurance policies, a verdict for plaintiff was set aside and final judgment entered for defendant. Plaintiff assigned as error the admission and exclusion of evidence. So far as the verdict itself was concerned, it was for the plaintiff, and that should be enough for him; but when that verdict was set aside and when final judgment was entered for the defendant, these rulings do become of...