Iowa Life Ins. Co. v. Haughton

• Decision Date: 19 March 1909
• Docket Number: No 6,318.,6,318.
• Citation: 46 Ind.App. 467,87 N.E. 702
• Parties: IOWA LIFE INS. CO. v. HAUGHTON.
• Court: Indiana Appellate Court

46 Ind.App. 467

87 N.E. 702

IOWA LIFE INS. CO.

v.HAUGHTON.

No 6,318.

Appellate Court of Indiana.

March 19, 1909.

On rehearing. Former opinion reversed, and judgment below affirmed.

For former opinion, see 85 N. E. 127, 494.

W. R. Gardiner, C. K. Tharp, C. G. Gardiner, W. C. Johnson, and L. A. Stebbins, for appellant. A. M. McClure, W. A. Cullop, George W. Shaw, J. P. Haughton, Samuel Emison, and A. J. Padgett, for appellee.

MYERS, J.

Appellee brought this action against the appellant to enforce payment of an insurance policy issued by the appellant upon the life of appellee's decedent, payable to his representative.

The complaint was in one paragraph, and in the ordinary form of such contracts. To the complaint appellant filed two affirmative answers, averring that the assured as a part of his medical examination made false answers to certain questions therein, and such answers were expressly declared to be warranties, and that such answers were taken as the basis of, and as a consideration for, the contract in suit; also, that said assured, for the purpose of procuring from appellant said contract, wrongfully and fraudulently and as an inducement to appellant to issue said contract of insurance and for the purpose of cheating and defrauding it made certain false and fraudulent statements in regard to his health, which appellant, without any knowledge or notice to the contrary, believed to be true, and thereupon issued the contract sued on in this action, etc. The reply was in two paragraphs, alleging that the appellant had actual knowledge of the truth of all the facts set up in its answers before and at the time it issued said policy or contract. The issues thus formed were submitted to a jury for trial, resulting in a general verdict for appellee. The jury also returned answers to 28 interrogatories. Over appellant's motion for judgment on the answers to the interrogatories, notwithstanding the general verdict, and over its motion for a new trial, judgment was rendered on the verdict in favor of appellee and against appellant. Errors are here assigned on the action of the court in overruling each of said motions. The jury in answer to interrogatories found that certain facts, averred as the basis of the appellant's answer, were true, but these facts, in view of the issues in this case, are not in irreconcilable conflict with the general verdict, and the motion for judgment was correctly overruled.

One of the reasons for a new trial was that the verdict was not sustained by sufficient evidence. The only evidence about which there is no controversy may be said to exhibit the following facts: The decedent was born October 25, 1870. He was a school teacher by profession. He was unmarried. In the fall of 1898, his right testicle being four to six times its normal size, he consulted a physician at Vincennes, to whom he stated that he first noticed an enlargement of that organ in February before. On December 19, 1898, the decedent's right testicle was removed, and he died July 20, 1899. Cause of death, was cancer of the stomach. During the summer and fall of 1898 he occasionally assisted agents in soliciting life insurance. On November 30, 1898, the application of decedent for a policy of $5,000 was taken by the Life Insurance Company of America, and a policy issued for that amount. On December 9, 1898, an agent for the Ætna Life Insurance Company secured from said decedent an application for a $2,000 policy, which in due time was issued by that company. On April 6, 1899, an agent for appellant secured from decedent an application, on which the policy in suit was issued.

Dr. Andrew J. Haughton, the father of decedent, resided and practiced medicine at Oaktown, Ind., for several years prior to his death, January 25, 1890, and at the time of his death was 61 years old. Dr. Haughton in May, 1885, went to Tonawanda, N. Y., his home prior to his removal west. Just before going to Tonawanda, he had been sick 11 or 12 weeks with typhoid fever. From Tonawanda he went to Buffalo, N. Y., and entered a hospital for medical treatment, and remained there about one year. He was admitted to the Central Insane Hospital at Indianapolis May 13, 1886, and was discharged June 14, 1886. His wife says when he returned to Indiana he entered a sanitarium at Indianapolis, where he remained for a while, and then returned to Oaktown, his home, and continued to practice medicine up to a short time before his death; that he did not have consumption, nor did any member of the family ever have consumption; that he was at no time insane or a person of unsound mind. This cause was defended on the ground that certain questions propounded by the medical examiner to the assured were falsely answered, and by the terms of the application and contract of insurance sued on such answers were warranted to be true. The questions and answers, in so far as they are material, are as follows: “Have you, or either of your parents, or any of your brothers, sisters, uncles, aunts, or other near relatives, now or ever had consumption, cancer, gout, scrofula Bright's disease, diabetes, epilepsy, insanity, or other hereditary diseases other than appear above? Answer: No. Have you now, or have you ever had, any of the following diseases? (Answer ‘Yes' or ‘No’ to each.)” The names of 56 diseases or ailments are submitted, among which are the following: “Colics; disease of the liver; disease of the spleen; cancer or tumor; palpitation; surgical operation”; to all of which the answer as recorded is “No.” “Have you ever had any ailment, injury, or infirmity whatever not already named? Answer: No. Give name and address of each physician consulted or who has prescribed for you during the past five years and the dates and causes of consultation. Answer: S. J. Lisman, Oaktown, Indiana; consulted for colds, usually occurring during the winter months.” Appellant insists that the decedent's father had been insane; that the decedent at the time he answered the questions propounded by the medical examiner was afflicted with cancer; that his right testicle had been removed by surgeons; and that prior to his application for insurance he had consulted physicians not named in his answers and for causes not stated. These were issues tendered by appellant, and it had the burden of proving them. Bliss on Ins. § 365.

It is the law that false statements made for the purpose of securing insurance, and relied upon by the insurer, will authorize the latter to avoid the contract. But the question in this case, as presented to the jury, was: Did the assured make the alleged false answers? The general verdict on that issue amounts to a finding that he did not, and on appeal all reasonable presumptions will be indulged in support of the proceedings and judgment of the lower court. The evidence was not all with the appellant. There is evidence in the record from which the jury might draw inferences clearly sustaining the general verdict. This being true, our opinion as to the importance or controlling influence of certain parts of the evidence or the weight that should be given it in determining the facts must yield to the judgment of the jury and the trial court. The questions in the medical examination blank were prepared by the appellant, and the answers thereto were written therein by its medical examiner. Present at this examination, other than the assured and the examiner, was appellant's agent, Smith, who took the decedent's application, and a part of the time Dr. Sprinkle, who was a partner of the doctor employed by appellant to make the examination. Dr. Sprinkle testified that he was a physician and a partner of Dr. Johnson at the time Johnson examined Haughton for insurance with appellant; that he was acquainted with the insured, George Haughton; that while sitting at his desk about five feet away from Dr. Johnson he “heard Dr. Johnson propound this question: ‘Have you ever had a surgical operation?’ and he said, ‘Doctor, you know I have, and I suppose that will bar me from life insurance,’ and Dr. Johnson told him he would fix that, and I got up while they were talking and left.” Another witness, James E. Cullop, testified that in the spring, or about the middle of March, 1899, George Haughton, in company with James G. Smith, who represented the Iowa Life Insurance Company, came to his house. “Smith asked me about taking life insurance, and he said: ‘I feel quite sure, if you will take insurance, Mr. Haughton will.’ I made the remark I had an operation performed on me, and he wanted to know if every one here had had operations, and I said, ‘No.’ Then says: ‘He [referring to Haughton] has had an operation performed. That won't make any difference. I will see Johnson, the medical examining physician. Both of you are all right. I want you, Mr. Cullop, to take a policy in my company. I feel right sure, if you take it, Mr. Haughton will.’ And I said I hadn't thought much about insurance, and I didn't believe either one would pass. He said castration hurt no one, and went on to explain. He said you could castrate stock, and he said there wasn't one out of 20 per cent. that died.” On April 29, 1899, the witness was examined by Dr. Johnson for a policy of life insurance to be issued by the appellant. The surgeon who performed the surgical operation before mentioned testified that to his best recollection, in speaking to Haughton in regard to his condition, “We referred to it as a malignant tumor, but no other name was given it.” He also testified that here are many tumors that are not malignant and keep on growing, and are not necessarily fatal. Such growths are from an independent source, independent of any physiological functions, and, if not malignant, it would not be cancer or sarcoma, and mistakes are made by the most eminent specialists in the diagnosis of tumors. Castration of itself is not usually a dangerous operation, and Mr. Haughton recovered with ordinary...