McCartney v. Old Line Life Ins. Co. of America

• Decision Date: 22 July 1970
• Docket Number: No. 85--41296--III,85--41296--III
• Citation: 3 Wn.App. 92,472 P.2d 581
• Parties: Charles A. McCARTNEY and Anita McCartney, husband and wife, and Violet Riddell, a widow, Appellants, v. The OLD LINE LIFE INSURANCE COMPANY OF AMERICA, a Wisconsin corporation, Respondent.
• Court: Washington Court of Appeals

Page 92

3 Wn.App. 92

472 P.2d 581

Charles A. McCARTNEY and Anita McCartney, husband and wife and Violet Riddell, a widow, Appellants, v. The OLD LINE LIFE INSURANCE COMPANY OF AMERICA, a Wisconsin corporation, Respondent.

No. 85--41296--III.

Court of Appeals of Washington, Division 3.

July 22, 1970.

Rehearing Denied Sept. 4, 1970.

Review Denied Oct. 7, 1970

Ralph Llewellyn Jones, Walla Walla, for appellants.

John G. Schultz of Leavy, Taber & Schultz, Pasco, for respondent.

MUNSON, Judge.

Charles McCartney and Violet Riddell, plaintiffs, seek to recover the value of a life insurance policy which the former took out on the life of his key employee, Patrick H. Riddell, husband of Violet. When the deceased was questioned at the time of the medical examination for the policy, and on two subsequent occasions, he failed to give the names of two doctors who had treated him for heart trouble and diabetes. As a result, even though the insurance company submitted an inquiry to the Medical Impairment Bureau for information on the applicant, defendant was uninformed concerning these medical problems until after the death of the insured. At the time plaintiffs made claim upon defendant under the policy, they were asked to list the names of all physicians who had treated the insured within 5 years preceding his death. Listed were the names of two doctors not mentioned on the original application or noted on the two subsequent inquiries made by defendant prior to the issuance of the policy. Upon learning of the insured's heart trouble and diabetic condition, defendant denied benefits to plaintiffs and tendered back the amount of their premium to McCartney.

The jury rendered a verdict in favor of defendant and plaintiffs appeal.

Plaintiffs assign error to the admission of exhibit 13--a summary of various items of medical information which came to defendant's attention after the death of Riddell--which measures 40 by 44 inches. We find merit in plaintiffs' contention. The court admitted exhibit 13 for illustrative purposes only and instructed the jury not to consider it as evidence. It was, along with all other exhibits, submitted to the jury for consideration during their deliberation at the close of the case.

Summaries of testimony may be used where documents are so numerous and the information contained therein so intricate as to make an examination of them by the jury impractical, E.g., issues involving embezzlement, misappropriation of funds and state of accounts wherein an accountant or auditor has examined voluminous records or books and gleaned therefrom those matters relevant to the issues then before the court. Keen v. O'Rourke, 48 Wash.2d 1, 290 P.2d 976 (1955); 29 Am.Jur.2d Evidence § 458 at 517 (1967). In the instant case the evidence sought to be illustrated by exhibit 13 is not of such a nature as to require a summary. This exhibit is more than an aid in explaining testimony, or in assisting the jury to better understand the evidence. Its possible effect is to get before the jury that which should be admitted through the original records or oral testimony. It tends to overemphasize the particular testimony set forth therein. Such an exhibit should be utilized only during the initial presentation of testimony or in final argument by counsel; it should not go to the jury as an evidentiary exhibit.

Plaintiffs also assign error to the admission of the deposition of Dr. Alfred J. Grose alleging his testimony was hearsay and speculative. For example, incorporated within the deposition was exhibit A, a letter or medical report signed by Dr. Grose to another insurance company, which had requested medical information concerning the deceased. In part Dr. Grose wrote:

From history received he Apparently was diabetic and Apparently had been told that he had coronary disease. * * * On that occasion I examined him very briefly and felt that his right dorsalis pedis, posterior tibia pulses were both palpable. The possibility of abdominal aneurysm was raised. The possibility of diabetic neuropathy was also raised.

(Italics ours.) Testifying in his deposition on cross-examination, the following occurred:

Q Now, you said in this letter, * * * You said he was apparently told that he had coronary heart disease But the fact is you do not know of your own knowledge whether he was or not; is this right? A This is correct. Q And if Dr. Olander says he didn't tell him, you would accept...