Metropolitan Life Ins. Co. v. Alterovitz

• Decision Date: 27 April 1938
• Docket Number: 27023.
• Parties: METROPOLITAN LIFE INS. CO. v. ALTEROVITZ.
• Court: Indiana Supreme Court

14 N.E.2d 570

214 Ind. 186

METROPOLITAN LIFE INS. CO. v. ALTEROVITZ.

No. 27023.

Supreme Court of Indiana

April 27, 1938

Appeal from Superior Court, Lake County; Harold L. strickland judge.

Bomberger Peters & Morthland, of Hammond, for appellant.

McAleer Dorsey, Clark & Travis, of Hammond, for appellee.

HUGHES Judge.

This is an action brought by the appellee against the appellant upon an insurance policy issued by the appellant to one Izadore Alterovitz on October 9, 1930, in which the appellee, widow of Izadore Alterovitz, was the beneficiary. The policy was for $10,000, and it, together with the application attached, was delivered to the said Alterovitz on October 17, 1930. On the 27th day of June, 1931, the said Izadore Alterovitz died. It is alleged in the complaint that on August 31, 1931, after the death of said Izadore Alterovitz, the appellee notified the appellant of the death of the said Alterovitz and made due proof thereof and demanded payment of the amount due under said policy of insurance, which demand was refused; that there is due and owing the appellee from the appellant the sum of $10,000 with interest from August 21, 1931, at 6 per cent. per annum. So much of the policy of insurance as is necessary to present the question raised in this appeal is set out.

The appellant filed three paragraphs of answer, the first being a general denial, the second alleging fraud in the application and tendering the premiums paid, and the third paragraph charging misrepresentation in the application and election by the appellant to avoid the policy. The second paragraph of answer alleged that the policy of insurance was issued upon and in consideration of a written application made by the said Izadore Alterovitz; that certain questions appeared in said application and three are set out and these three questions and answers thereto present the main controversy in this case. The application contains two parts, A and B. Question 5 in part B is as follows: 'Have you ever been an inmate of or have you ever received treatment at an asylum, hospital, sanatorium or cure? If yes, give date, duration, name of ailment and name of institution.' To this question the applicant answered 'No.' Question No. 12 of part B is as follows: (g) 'Have you consulted a physician for any ailment or disease not included in your above answers?' The applicant answered 'No' to this question. Question 13 of part B is as follows: 'What physician or physicians, if any, not named above, have you consulted or been treated by, within the last five years, and for what illness or ailment? If none, so state.' The applicant answered 'No' to this question.

It is further alleged that at the bottom of said application part B, is the following: 'I hereby certify that I have read the answers to the questions in part B hereof, before signing, and that they have been correctly written, as given by me, and that they are full, true and complete, and that there are no exceptions to any such answers other than as stated herein. Dated at Gary, Indiana, this 3 day of October, 1930. Witness to signature W. P. Alexander, M. D. Signature of applicant Izadore Alterovitz.'

The appellant further alleged that the policy was issued upon the representations set out in the application without knowing they were false and if it had known they were false answers it would not have issued that policy; that all of said answers were false and fraudulent and made with intent to deceive the appellant; that from September 4, 1929, until and long after the date of the application the said applicant was under the care and treatment of one Dr. Bills of Gary, and that within a year prior to the date of said application the applicant had been under the care of Dr. Kan of Gary; that during said period from September 4, 1929, to and subsequent to the date of said application, said applicant had been treated in a hospital in Gary and various examinations and diagnoses were made of his condition; that he was found to be suffering from a large aneurysm; that he had been treated for such aneurysm periodically during at least a year prior to the date of the application; and that he died on June 27, 1931, from said aneurysm.

The same facts were stated in the third paragraph of answer, the appellees filed three paragraphs of reply. The first being a general denial; the second paragraph alleged in substance that Dr. Alexander, the medical examiner of the appellant, wrote the answers to the questions; that the applicant did not read the questions or answers, but affixed his signature to parts A and B without knowing what Dr. Alexander had written but relied upon the assumption that Dr. Alexander would insert true and correct answers; that as to question 5 he, the applicant, informed Dr. Alexander of the various hospitals he had been in, but he, without the consent, knowledge, collusion, or conspiracy of the applicant, wrongfully and falsely inserted the word 'No.'

It is further alleged as to question No. 12, the applicant told Dr. Alexander that he was being treated for an ailment which manifested itself by a pain in the chest and around the heart and that he also told him that he had consulted Drs. Bills and Kan, but that Dr. Alexander inserted the answer 'No'; that he also answered question 13 truthfully, but that Dr. Alexander falsely and wrongfully inserted the answer 'None' without the knowledge, consent, or approval of the applicant; that the examiner did not read the certificate which the applicant signed and that he could read English only with difficulty; that the applicant stated the true facts and information concerning the answers to questions but the medical examiner inserted false and untrue answers; that the applicant relied upon the medical examiner to insert the correct answers as given by the applicant; and that he never knew that said examiner inserted false and wrong answers.

It was the theory of the paragraphs of reply that the appellant had waived the conditions of the policy and was estopped from avoiding liability under the policy. There was a trial by jury and a verdict rendered in favor of appellee for the amount of the policy.

The error relied upon for reversal is that the court erred in overruling appellant's motion for a new trial in which appellant claims there was error in giving and refusing to give certain instructions; the admission of oral evidence in rebuttal and that the verdict is not sustained by sufficient evidence and is contrary to law.

The evidence in substance is as follows: Izadore Alterovitz was forty years old when he died; he had been in the mattress business, known as the Gary Sanitary Bedding & Mattress Company. Dr. Bills testified that he had treated Alterovitz for different things from September 4, 1929, to June 18, 1931. It is shown in evidence that the said Izadore Alterovitz had an insurance policy with the Missouri State Life Insurance Company at the time of his death and that proof of death was made which showed that he died at the Edward Hines Hospital and the cause of death was aneurysm aortic with edema pulmonary as a contributing cause. It was further shown by the records of the Veterans' Bureau that the said Alterovitz was admitted to the Edward Hines Hospital on June 23, 1931, and died on June 27, 1931; the personal history, on his admittance, showed that he had been treated for rheumatism by a doctor in 1921; that he stated he had been having pains since 1929 and had treatment by a doctor; that his complaint was shortness of breath, pain in chest, shoulder, back, and sides and had these pains since 1929; that the diagnosis made at the time of his death was aneurysm aortic and pulmonary edema. The proof of death shows that the cause was aneurysm aortic.

It was shown by medical experts that aortic aneurysm is an enlargement of the aorta vessel which leads from the left side of the heart and when there is an aneurysm there is a bulge in one shape or another in the wall of the vessel. It was further shown that where one had pains in and about the chest and a cough it would indicate an aneurysm of the aorta; that the most characteristic cause of a brassy cough is aneurysm. Ester Surif, a sister of the beneficiary, testified in rebuttal that she was present when the questions were asked by Dr. Alexander and answers made. This was more than five years after the examination was made. Her evidence was to the effect that the applicant told Dr. Alexander in response to questions that he, the applicant, was in the hospital during the time he was in the World War; that he said, 'I have been to two physicians Drs. Bills and Kan on several occasions'; that he had a cough and pain around his heart; that he had a cough right now and 'I have been to see Dr. Bills a few days ago and also Dr. Kan; that he said he had a pain around his heart, but that Dr. Alexander said it was not necessary to put that down; she stated that Alterovitz did not read the application. It was admitted that a copy of the application was attached to the policy when issued.

The evidence shows that Alterovitz had been in business in Gary for several years; that he conducted his business in the English language; that he did his own banking business and solicited orders and order books printed in the English language and there is no evidence to show that he was not acquainted with the use of the English language.

It is contended by the appellant that the court erred in permitting the witness, Ester Surif, to testify that the applicant made full disclosure of his physical condition and treatments by physicians in answering questions propounded to him by Dr Alexander, the medical examiner; that when the insurance company complied with the statute in attaching a copy...