Flikeid v. New York Life Ins. Co.
| Decision Date | 01 May 1925 |
| Docket Number | 24,482,24,483 |
| Citation | 203 N.W. 598,163 Minn. 127 |
| Parties | MABEL FLIKEID v. NEW YORK LIFE INSURANCE COMPANY |
| Court | Minnesota Supreme Court |
Two actions in the district court for Blue Earth county. The cases were tried before Comstock, J., and a jury which returned verdicts in favor of plaintiffs. Defendant appealed from orders denying its motions for judgment notwithstanding the verdict or for a new trial. Reversed.
Application for life insurance false in material respect.
It appears conclusively that insured, prior to the application for the insurance, had consulted and was treated by a physician, which facts he denied in the application; that the same materially affected the risk and that the same would not have been accepted had the truth been revealed.
1. See Life Insurance, 37 C.J. p. 647, § 447.
Mitchell Doherty, Rumble, Bunn & Butler, for appellant.
William Stradtmann and F. F. Ellsworth, for respondents.
Two actions to recover upon two insurance policies, issued by the defendant company, upon the life of John A. Hagman, in favor of his five children, named as plaintiffs. The defenses are that the policies were procured by fraud and deceit, enacted through false statements and representations made by the insured in the application for such insurance. The causes were tried separately and verdicts returned in favor of the plaintiffs in each case. The appeals are from an order, in each case, denying defendant's motions for judgment in its favor or for new trials. The appeals were submitted to this court together.
The insured was 56 years of age. His children were all grown up and gone out for themselves. He conducted a restaurant and roomed at the home of Mr. and Mrs. Scholl, in the city of Mankato. He spent Christmas day, 1920, with his daughter in St. Paul, returning on December 27 at about 10 o'clock in the evening. After an exchange of greeting as he entered the Scholl home, a photograph was handed to him. He looked at it and attempted to hand it back. It dropped from his hand. He had lost his power of speech. He could not drink water. He remained unable to speak for nearly an hour, and was then able to speak only in a mumbling manner. Dr. Andrews was called. He arrived shortly. The doctor examined him, put him to bed. He spoke to the doctor in a mumbling way and remained in bed during the following day. He got up from bed the second day, but mumbled in his talk. On the third day he talked in his usual manner. The foregoing is in accordance with the undisputed testimony of Mrs. Scholl.
Dr. Andrews testified that he was called to attend the insured the first time on December 27, 1920, at the Scholl home, between 10 and 11 o'clock in the evening; that he examined the patient and found him unable to talk; that he did not appear to know what he was doing; that, in the course of about ten minutes, his speech began to return, although it was a mumbling speech; that he called next morning and examined him more thoroughly; that his condition was much improved, but his speech was not normal; that his blood-pressure was a little high; that there were no signs of paralysis outside of his speech; that he saw the patient three times at his office during the next few days, and again a number of times in December and the following January; that his diagnosis, made when he first saw the patient, was a slight stroke of apoplexy, and subsequent examination confirmed that conclusion; that, judging from his sickness and from the examination made, he was of the opinion that the insured had glioma of the brain when he first saw him in December, 1920; that glioma is a tumor of the brain; that he told the patient that the examinations he made in December, 1920, showed high blood pressure; that he had a spell resembling a stroke of apoplexy and that he should be a little careful as to his habits, etc.
Dr. Madden testified that he had been a practicing physician for 35 years; that he knew the insured since early in 1917; that they were friends, were together considerably, used to take walks together and used to call upon one another quite often up to a short time before his death; that the insured consulted him as a physician from time to time; that, early in 1921, he began to complain of headache and of a great deal of nervous disturbances; that he first complained of nervousness about the middle of March, 1921, and from that time on; that he examined the insured about the middle of March; that the insured then told him, for the first time, of the attack he had in December before; that the insured told him at that time that he had an attack, that he became momentarily unconscious, and that he was quite disturbed over it, that everything became dark and that he consulted Dr. Andrews about it; that he saw the insured occasionally up until Memorial Day, 1921; that, at that time, he had a seizure harder than at other times, and that he told him to go to St. Paul and see Dr. Riggs, which he refused to do, so the witness ceased to be his advisor thereafter.
The application for the first policy was made by Mr. Hagman under date of March 19, 1921. Dr. Sohmer of Mankato was the local medical examiner of the New York Life Insurance Company at that place. He testified that he examined Mr. Hagman for life insurance at the clinic in Mankato, on March 19, 1921; that he was alone with the applicant in a room; that he asked him the questions as they were on the regular application form; that, as the questions were answered, he wrote down the answers as given by the applicant; that the applicant signed his name to the application as being correct; that he (witness) then went on and completed the physical examination in accordance with the application blank; that he then signed the application and sent it to the company; that plaintiff's Exhibit A, third page, is a photograph copy of the questions and answers and of the signature of Mr. Hagman; that he did not disclose to him that he had ever suffered any ailment or disease within the preceding five years, nor that he had consulted any physician within that time; that he examined him again in July of that year, at which time he complained of his right leg, arm and ear bothering him; that he examined him again in December of the same year; that he then complained of the loss of word memory and that he had pricking sensations in his right arm and leg which had been present since the previous January, and that all of his teeth had been extracted, and he had artificial ones.
The application contained the following caption, questions and answers:
THE APPLICANT MUST ANSWER THESE QUESTIONS FULLY AND WITH SPECIAL CARE:
9. Have you consulted a...
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