Johnson v. Metropolitan Ins. Co.

• Decision Date: 23 February 1968
• Docket Number: No. A--1423,A--1423
• Parties: James L. JOHNSON, Plaintiff-Respondent, v. METROPOLITAN INSURANCE COMPANY, a New York Corporation, Defendant, and Progressive Life Insurance Company, a New Jersey Corporation, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 463

99 N.J.Super. 463

240 A.2d 434

James L. JOHNSON, Plaintiff-Respondent, v. METROPOLITAN INSURANCE COMPANY, a New York Corporation, Defendant and Progressive Life Insurance Company, a New Jersey Corporation, Defendant-Appellant.

No. A--1423.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 29, 1968.

Decided Feb. 23, 1968.

Burton L. Fundler, Asbury Park, for appellant (Mirne, Nowels, Fundler & Cornblatt, Asbury Park, attorneys).

Eugene T. Radcliffe, Mt. Holly, for respondent (Powell & Davis, Mt. Holly, attorneys).

Before Judges GOLDMANN, KILKENNY and CARTON.

The opinion of the court was delivered by

KILKENNY, J.A.D.

This is an appeal by defendant Progressive Life Insurance Company from a judgment in the amount of $8021.81 in favor of the substituted plaintiff Katherine F. Johnson, executrix of the estate of James L. Johnson. Decedent had instituted suit in his lifetime to recover benefits claimed to be due him under a lifetime disability policy issued by Progressive to him on December 13, 1961. He died before trial and his personal representative was substituted as plaintiff.

Another suit against Metropolitan Life Insurance Company is not involved in this appeal. There was a stipulation of dismissal as to it.

A full recital of the facts is necessary for an understanding of the issues involved.

As noted above, the policy upon which suit was based was issued on December 13, 1961. The insured, James L. Johnson, in his written application for the policy gave answers to questions therein as follows:

'10. Have you ever been treated for, or ever been told that you had any one or more of the following:

* * * Heart Disease? No.

13. Have you consulted a physician or other practitioner within the past five years or to the best of your knowledge and belief have you had any illness or disease not mentioned in the answers above? Yes No REMARKS:--Give full details including names and addresses of attending physicians, dates and reasons when any questions 8 through 13 are answered 'Yes.'

#13--July 1961 Hydrocele removed surgical. Loss of time about 6--8 wks. Complete rec. R. Gove, M.D. Brant Beach, N.J.

15. Do you represent that the above answers are true and complete to the best of your knowledge and belief and do you agree (1) that the falsity of any answer in this application shall void the policy, if such answer materially affects either the acceptance of the risk or the hazard assumed by the Company, (2) that the insurance, if issued, shall take effect on delivery of the policy and payment of the first premium during your good health, but only if no change shall have occurred in your insurability since the completion of this application? Yes.'

The application was dated December 13, 1961 and signed by Johnson before a licensed agent of defendant insurance company.

On August 5, 1963 Johnson became totally disabled within the terms and meaning of the policy in question. He was then admitted to Temple University Hospital in Philadelphia, suffering from Alzheimer's disease. Thereafter he submitted a claim for permanent disability benefits under the policy. A routine investigation was made by defendant. An examination of the hospital records from the time of his admission revealed to defendant for the first time that Johnson had at the time of his application for the insurance and for several years prior thereto a medical history of coronary insufficiency. Johnson himself supplied this history to the hospital authorities. This history manifested that his answers on the application, as noted above, were false and incomplete. Defendant deemed his representations to be not only false and incomplete, but also such as to have materially affected its acceptance of the risk and the hazard assumed by it. Details thereof are noted infra.

Defendant notified Johnson by letter of October 16, 1963 of its election to declare the policy void, enclosing therewith a check refunding all premiums paid. The present action followed.

Trial of the cause was before a jury and it returned a verdict in plaintiff's favor. The jury answered by an 11-to-1 vote in the negative the following special interrogatory:

'Did Mr. Johnson have a heart disease including a coronary insufficiency or a cardiovascular illness at any time during the period November 19, 1957 through May 23, 1959?'

In another special interrogatory the jury was asked:

'What is the amount of damages that the plaintiff is entitled to under the policy of insurance--$5762.31 or $8021.81?'

Its answer, by a 10-to-2 vote, was $8021.81.

Judgment was entered on the basis of the verdict. Defendant moved for judgment in its favor, notwithstanding the verdict. The motion was denied, as had its earlier motions for judgment in its favor. This appeal followed.

Defendant's main argument is that its several motions for judgment in its favor, during and after the trial, should have been granted on the basis of the insured's material misrepresentations in his application for the policy in question. In appraising that contention the following additional facts must be noted.

On November 19, 1957 Johnson, the insured, consulted his family physician, Dr. Richard Gove, complaining of fatigue and pains in his chest. He saw Dr. Gove again for chest pains and distress on December 3rd, 13th and 27th, all in 1957. He was physically examined and was given an electrocardiogram. Dr. Gove interpreted the EKG 'as suggestive of coronary insufficiency.' The doctor recommended the taking of peritrate. This is a vessel-dilating drug, used primarily for coronary diseases. Mrs. Johnson admitted in her testimony that her husband told her in 1957 that Dr Gove said he might have a 'heart condition.' Dr. Gove testified that he told Johnson of his finding of coronary insufficiency. Johnson was told 'that he should refrain from working, for a while, which he did, I'm sure.' Dr. Gove testified that Johnson 'had a cardiac pain, which would mean his chest, in the area that would probably cause this.' The coronary insufficiency itself, according to the doctor's testimony, 'is more of a symptom, really, than it is specifically a disease. * * * The coronary vessels are not getting sufficient blood supply, is what it means.' Johnson's distress persisted and Dr. Gove advised him to see a specialist.

On May 5, 1959 Johnson desired another doctor's opinion and consulted Dr. George J. Slotoroff. He saw this doctor also on May 12th and 23rd. The doctor examined the insured electrocardiographically and found him negative as far as coronary artery disease. A chest x-ray, taken by a Dr. Willner, proved negative. The doctor told Johnson that 'he had no coronary artery disease * * * and convinced him that he could do his active work without any problem.' We note that Dr. Slotoroff was graduated from a school of osteopathy, as opposed to a general medical college, but his license entitles him to practice medicine in New Jersey. He is, admittedly, not a heart specialist. He did not recall Johnson's complaints when he came to his office in 1959, and he had no records as to his clinical findings. He was aware, however, that Johnson had been treated by medication, 'peritrate,' for a year and a half prior to his examination.

In answering the question in the December 1961 insurance application, the insured failed to disclose his having consulted Dr. Gove or Dr. Slotoroff in 1957 and 1959, respectively, for the purposes above noted. His only disclosure of having consulted any physician during the five years preceding the application was tersely set forth, as noted above:

'July 1961 Hydrocele removed surgical. Loss of time about 6--8 wks. Complete rec. R. Gove, M.D. Brant Beach, N.J.'

That disclosure related only to a relatively immaterial surgical incident, considering that he fully recovered therefrom. A 'hydrocele' is an accumulation of serous fluid in a sacculated cavity, specifically in the scrotum.

Nor did Johnson, as applicant for a policy, disclose that on October 27, 1961, less than two months before he signed the application, he again consulted Dr. Gove and 'complained of pains in his chest.' The doctor then gave him medication 'for chest pains,' Viz., codeine and papavarine, which the doctor testified 'was primarily for cardiac distress.'

It was Dr. Gove who referred Johnson to Temple University Hospital on August 5, 1963, where he was placed in the care of Dr. Murtagh. The hospital records are very revealing. Under 'Personal History,' Johnson stated that '3--5 yrs ago had 'Heart attack' and nervous breakdown.' Reference is also made to '1961--Hydrocele operated on.' The person who took the history noted 'patient gives vague hx (history).' Dr. Murtagh noted that there was a 'possible cardiac problem several yrs. ago.'

We are not unmindful of the fact that Johnson was suffering from Alzheimer's disease when he entered the hospital. His mental acuity was affected and he needed assistance to walk to the ambulance. This disease is a progressive deterioration of mental and physical motor ability. It is caused principally by arteriosclerosis, or hardening of the arteries in the brain, thus preventing the proper vascular supply needed for complete and efficient cerebral activity. Once started, it is an irreversible process and ultimately leads to death, as it did here. The early symptoms are headaches and loss of motor ability--here, in the forms of bilateral frontal head pain, right-side paralysis and slurred speech. This indicated that the first affected areas were in the left side of the brain, with some right-side involvement. The pathogen has not been identified, but it is clear that this vascular condition is not related to heart disease.

Johnson was operated on at the hospital (bilateral brain biopsy) and the suspicion of Alzheimer's disease was confirmed. The operation is diagnostic only. No treatment is available for this disease. After the operation he was taken home. His condition never...