McCombs v. Travelers' Ins. Co. of Hartford, Conn.

• Decision Date: 06 May 1913
• Citation: 141 N.W. 328,159 Iowa 435
• Parties: MCCOMBS v. TRAVELERS' INS. CO. OF HARTFORD, CONN., ET AL.
• Court: Iowa Supreme Court

159 Iowa 435

141 N.W. 328

MCCOMBS

v.TRAVELERS' INS. CO. OF HARTFORD, CONN., ET AL.

Supreme Court of Iowa.

May 6, 1913.

Appeal from District Court, Marshall County; Clarence Nichols, Judge.

Action upon a policy of insurance upon the life of one J. A. Heether. Cause tried to a jury. Verdict and judgment for the plaintiff. Defendant appeals. Affirmed.Cummings & Mote, of Marshalltown, and Clark, Byers & Hutchinson, of Des Moines, for Travelers' Ins. Co.

F. E. Northup, of Marshalltown, for appellee Anna R. Heether.

Bradford & Johnson, of Marshalltown, for other appellee.

GAYNOR, J.

It appears that, on the 22d day of June, 1909, one John A. Heether made written application to the defendant company for life insurance, in the amount of $1,000. That, in the application so made, he stated, among other things, that he was sound mentally and physically, had never had any bodily infirmity or deformity, and had not been disabled, and had not received surgical attention within five years, except that he had a small accident claim with the Travelers' Accident Association the year previous. That he was examined by the company's physician, being its regular medical examiner, to whom he said, in answer to the following question, “What physician did you last consult?” “Dr. Jacobs, of Memphis, Tenn. On April 10, 1909, for acute indigestion. I was not sick, simply consulting him. My present health is good.” He also said in his application that no change of climate had ever been sought or advised for the benefit of his health, and said the same to the physician at the time of his medical examination. That, the application made by him and the report of the examining physician having been submitted to the defendant company, it issued to him its policy of insurance on the 28th day of June, 1909. It appears that this application was made at Moberly, Mo., and was taken by one Kelley, agent for the defendant company. It appears further that Heether and his wife left Moberly on the 23d day of June, 1909, and went to Marshalltown, where they visited with relatives a few days, and then returned to their home at Memphis, Tenn., arriving there July 4th.

Dr. Nichols, of Marshalltown, testified that, when Heether was at Marshalltown on his visit, he noticed that he had fallen off in weight, and he did not think he was looking well. That his color was bad, and he did not have the appearance of a well man.

It appears that on or about April, 1909, Heether consulted Dr. Jacobs, at Memphis, Tenn., and it appears that the doctor then thought he was suffering from acute indigestion. It appears that after his return to Memphis, on July 4th, he again consulted Dr. Jacobs on the 8th of July, and at other times during July, and on the 9th of August, and Dr. Jacobs says: “He complained of an indefinite pain and a general feeling of pain, but I did not consider that there was anything particularly the matter with him, but that it was biliousness. When he called on the 31st of July, he had lost a great deal in weight and complained of abdominal pains in the right side. I then began to fear some serious trouble and prescribed for him. I saw him again on the 3d of August and found his condition worse. I then recommended that he go to Atlantic City, in the hope that the change of climate would benefit him, and advised that he consult some New York specialist. I treated him the last time on the 9th of August.” It appears that Heether and his wife started for Atlantic City the next day. That on the 13th of August Heether became worse and called in Dr. Marshall, who thereafter attended him each day, and sometimes more than once a day up to the 29th day of August, 1909, at which time he died. That the cause of his death was diagnosed as atrophic cirrhosis of the liver.

Dr. Marshall says: “After I had examined him I told him he was a sick man and that his condition would not improve rapidly. He did not agree with this. He said he had always been a well man, had never been sick, and that he had been working up to August 10th. At the time I first saw him, I thought he was suffering from atrophic cirrhosis of the liver.”

Dr. Marvel, who visited him on the 19th, with Dr. Marshall, testified that it was his opinion that he was suffering from cirrhosis of the liver.

Dr. Devine, of Marshalltown, being called for the defendant company, testified: “If a heavy man consulted a physician on the 23d of June for some trouble, which the doctor diagnosed as biliousness, and he lost weight rapidly, complained of pain in the right side, became worse and went to Atlantic City on the 9th of August, on the 13th of August called physician and was treated every day thereafter until the 29th of August, when he died, and the cause of his death was diagnosed by the doctors in charge as atrophic cirrhosis of the liver, that man was not in good health in June previous. That with atrophic cirrhosis of the liver, after the patient had lost 40 pounds in weight, that would usually be followed by a dropsical effusion, headache, and perhaps some nervous disorder like convulsions, then coma, and then death. The first symptoms are usually manifested before the loss of weight begins, and the man usually fancies he has trouble with his stomach. He is nauseated. His appetite is not good. He vomits more or less, especially in the morning. Has pain in the abdomen. Has a changed expression in his face. He has a peculiar expression. It is called hepatic face.”

The plaintiff is the assignee of the beneficiary named in the policy, Mrs. Heether, and brings this action to recover the amount of the policy, stipulated there to be paid upon the death.

The defendant, answering the petition, alleges the fact to be that said policy was obtained from the defendant company, and the medical certificate and report were obtained from the physician (upon which the policy was issued) by fraud, false representations, and misstatements; that the certificate and report would not have been made, or the policy issued, had the truth been stated by the said Heether in his application for insurance and to the examining physician who issued the certificate of health. The false representations claimed to have been made are: “That he was in sound condition mentally and physically; that he had not received medical or surgical attention within the past five years; that no change of climate had ever been sought or advised for the benefit of his health.” That the company, in issuing the policy, relied upon the statements made by the applicant, and would not have delivered said policy, except for its belief that the statements were true. Defendant says that the statements so made were untrue. Upon the issues so tendered, the cause was tried to a jury and a verdict rendered for the plaintiff, and against the defendant for the sum of $1,095, and judgment entered upon the verdict, and, from the judgment so entered, the defendant appeals.

[1] The defendant alleges as error, and bases his right to reversal, upon the action of the court in refusing to admit certain evidence offered by it, referring to transactions connected with a $3,000 policy issued later by the defendant on the life of the said Heether on the same application upon which the policy in question was issued, claiming that, the defendant having alleged fraud, this evidence was part of the same transaction and threw light on the preceding parts of the transaction directly involved in the suit. This being the only error assigned, this is the only matter to which we will direct our attention.

It appears that on June 22, 1909, Heether made application to the defendant company for insurance, and the application stated the matters hereinbefore referred to. That he was examined by one Dr. Clapp, defendant's examining physician, and...