Mosely v. National Bankers Life Ins. Co., 6541

• Decision Date: 17 December 1959
• Docket Number: No. 6541,6541
• Citation: 1959 NMSC 104,347 P.2d 755,66 N.M. 330
• Parties: Corinne R. MOSELY, Plaintiff-Appellee, v. NATIONAL BANKERS LIFE INSURANCE COMPANY, a Corporation, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 755

347 P.2d 755

66 N.M. 330

Corinne R. MOSELY, Plaintiff-Appellee, v. NATIONAL BANKERS LIFE INSURANCE COMPANY, a Corporation Defendant-Appellant.

No. 6541.

Supreme Court of New Mexico.

Dec. 17, 1959.

Callagher & Walker, Albuquerque, for appellant.

Dale B. Dilts, Albuquerque, for appellee.

MOISE, Justice.

This is an action upon three certain health and accident policies issued by appellant to appellee. They are described as a daily hospital expense policy, a medical and surgical policy, and an accident policy.

In November, 1956, appellee was employed as a saleslady by appellant. About two months later appellee applied for the policies in question and they were issued. Thereafter, on May 4, 1957, she was injured in an accident while getting out of her car. Upon appellant refusing to make payments as provided in the policies, this suit was filed resulting in a judgment in favor of plaintiff-appellee.

The principal defense made by defendant-appellant to the complaint was one of fraud which was added at the time of trial, to the effect that plaintiff-appellee had given false information, and she was in fact uninsurable, and if true facts had been known the policies would not have been issued. The only point made on this appeal is that Findings of Fact II and VI are not supported by the evidence.

These findings read as follows:

'II. That the plaintiff completed all the applications for the insurance policies mentioned herein in good faith and supplied all information required by said applications to the best of her ability.'

'VI. That the plaintiff did not in any way (de)fraud the defendant in any of her applications for the insurance policies involved herein.'

Appellant recognizes that in a case such as this when the attack is upon the findings, we will confine ourselves to determining if there is substantial evidence to support the same, and if so, to affirm the judgment, and by the same token if there is no substantial evidence to support the findings, we will set the judgment aside. Lopez v. Townsend, 42 N.M. 601, 82 P.2d 921.

Having set forth its one point for reversal, and then having stated the rule concerning the weight to be given to findings of the court, appellant reviews the evidence which it states 'refutes the findings of fact Nos. II and VI.'

In summary this evidence has to do with appellee's answers to questions 19 and 20 on the application for one of the policies. Question 19 asked her to name every physician or practitioner she had consulted for any purpose in the last five years. She named only Dr. Carr, whom she said she consulted in January, 1957, for bronchitis. Question 20 asked if she had ever had or been advised to have a surgical operation, to which she replied 'yes, hysterectomy, 1951, Temple, Texas.'

Appellant points to evidence that appellee suffered from 'hemorrhoids to the extent that it was necessary for her to use a pillow to sit on in order to drive an automobile.' How this enters into its claim that appellee's answers to questions 19 and 20 were false is not clear.

Appellant states that appellee failed to advise in answer to question 20 that she had a bladder operation and a childbirth repair performed in 1954. Appellee explained this by saying that these operations were sequels to her hysterectomy of which she advised appellant, and they were done by the same surgeon at the same place. Evidently the trial court accepted her explanation.

Next, appellant comments concerning evidence that appellee had a congenital back deformity and wore a brace, and further that numerous orthopedists had advised a back fusion. It is sufficient answer to this to point out that appellee denied any such deformity, and evidently the court believed her. Also, she denied any advice to have a fusion, except in 1948, some ten years before, she says a doctor suggested a spine operation and then changed his mind, and that she consulted two other 'bone specialists' who said she didn't need the operation, and further that her trouble with her back was cleared up when she had the hysterectomy.

Appellant complains that in the application no mention was made of an injury to appellee's back and neck in a fall in a store in December, 1955, for which she received medical treatment. In answer the appellee points to another application form filled out by her some two weeks after the first one, and in which she states she consulted a doctor in December, 1955, and names him. Incidentally, it is interesting to note that the policy issued pursuant to this latter application is dated February 27, 1957, making it clear that appellant had this information when it issued the other policy on March 1, 1957.

Next, appellant points to four doctors consulted by appellee and not named in her answer to question 19. One of these was consulted in 1951, more than five years before the application. One was consulted in May, 1957, in connection with the accident out of which the controversy arose. Appellee admits she failed to name one doctor she consulted in 1955 for pneumonia, and as to the fourth, she admitted seeing a doctor about a virus but she didn't know his name. Evidently, the trial judge did not consider these omissions material, or that they indicated fraud.

Appellant argues that there were numerous...