National Life & Acc. Ins. Co. v. Whitlock
| Decision Date | 26 November 1946 |
| Docket Number | 32330. |
| Citation | 180 P.2d 647,198 Okla. 561,1946 OK 327 |
| Parties | NATIONAL LIFE & ACCIDENT INS. CO. v. WHITLOCK. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 13, 1947.
Appeal from Court of Common Pleas, Tulsa County; John T. Harley Judge.
Action on a life insurance policy by Donis H. Whitlock against the National Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals.
Reversed with directions.
Syllabus by the Court.
1. Where contracts are made in one place, to be executed in another, the law of the place of execution governs, when the parties so stipulate.
2. Record examined and held, that the trial court erred in denying defendant's request for an instructed verdict.
Biddison & Rheam, of Tulsa, for plaintiff in error.
G. C Spillers and G. C. Spillers, Jr., both of Tulsa, for defendant in error.
This is an action to recover on a policy of life insurance, brought by the plaintiff, Donis H. Whitlock, beneficiary in the policy, against the defendant Insurance Company. Defendant at the close of the evidence, moved for an instructed verdict, which motion the trial court denied, and the case was submitted to a jury, which returned a verdict for plaintiff. Judgment was rendered on the verdict, and defendant appeals.
The decisive question presented is whether the trial court erred in denying defendant's motion for an instructed verdict.
Essential facts established by the evidence were that the application for the policy was executed by Cecil Herman Whitlock, husband of the beneficiary, on September 8, 1942, at El Paso, Texas; that no medical examination of Whitlock was made, and the application showed him to be in good health; that L. N. Smith was the soliciting agent of defendant in procuring the application; that the policy was issued by the home office of defendant in Nashville, Tennessee, and delivered by Smith to Whitlock in El Paso, Texas, on September 21, 1942; that at and prior to the time policy was delivered Whitlock was afflicted with pulmonary tuberculosis, and that after the signing of the application, but prior to the delivery of the policy, Smith had notice or knowledge of Whitlock's condition; that Whitlock died in Tulsa, Oklahoma, of pulmonary tuberculosis, on April 15, 1943; that defendant had no notice or knowledge that Whitlock was suffering from tuberculosis, unless the knowledge of Smith be imputed to defendant, until after Whitlock's death, and that upon learning that his death was caused by that disease defendant tendered to plaintiff the premiums received by it and denied that the policy had ever been in force.
The application and policy were put in evidence, and both appear in the record. Paragraphs 5 and 6 of the policy are as follows:
The application contains a provision similar to the last sentence in paragraph 6 of the policy.
Defendant contends that the evidence conclusively established that Whitlock, at and prior to the time the policy was issued and delivered, was afflicted with tuberculosis, and that under the law of Texas, which defendant specifically plead as applicable in an amendment to its answer, and admitted in evidence, such proof was a complete defense to the action. Plaintiff asserts that the evidence was such that the trial court properly submitted it to the jury.
Defendant produced and read in evidence the depositions of two physicians of El Paso, Texas. One of these physicians examined Whitlock on September 12, 1942, and the other examined him on September 21 of the same year. Each testified positively that at the time he examined Whitlock the latter was afflicted with pulmonary tuberculosis. Dr. Laws, who examined him on September 21, was Medical Director of the tuberculosis control work of the City-County Health Unit, and Medical Director of the tuberculosis department of the City-County Hospital at El Paso. He testified that when he examined Whitlock he found him suffering from active pulmonary tuberculosis; that his case was rather far advanced; his judgment was that Whitlock had been so afflicted for at least a year prior to the time he examined him, and that although given treatments, he grew progressively worse.
The physician who examined Whitlock on September 12 took an x-ray photograph of his chest. He testified that the x-ray showed that Whitlock was suffering from tuberculosis, and had been so afflicted for from six to twelve months previously. The testimony of these physicians is positive and unequivocal. The testimony of a Tulsa physician, who examined the x-ray photograph above mentioned, was that it showed that Whitlock had had the disease for at least a year before the photograph was made. A certificate of Whitlock's death, made by a physician who attended him in Tulsa, stated that death was caused by pulmonary tuberculosis.
The testimony of the physicians is not contradicted except by the testimony of plaintiff that her husband was in good health at the time the policy was delivered, and working steadily, and that he did not consult the physicians prior to the delivery of the policy; that he became ill shortly after the policy was delivered, and never recovered. She could not remember dates, but testified that the visits to the physicians, and the beginning of her husband's last illness, all occurred 'somewhere about the middle of September.' Her testimony that her husband did not consult the physicians until after the policy was delivered is contradicted by Smith, upon whose testimony plaintiff bases her contention of estoppel hereafter referred to. He testified that before he delivered the policy Whitlock told him that the doctors said he had tuberculosis but he did not believe it. It is also contradicted by the records made by the physicians, copies of which were attached to their depositions. But the testimony of the medical witnesses that Whitlock had been afflicted for at least a year prior to their examination made the question of whether he was examined before the policy was delivered, or shortly thereafter, of no importance. In either event, from their testimony he was so afflicted when the policy was delivered.
It is clear that the testimony of plaintiff that her husband was in good health was a conclusion, or the expression of an opinion, upon a matter as to which she was not qualified to judge. That was a question which could be determined only by skilled medical practitioners or professional men of scientific ability in the diagnosis and treatment of the disease. It could not be determined from the testimony of unskilled witnesses. Inter-Ocean Oil Co. v Marshall, 166 Okl. 118, 26 P.2d 399; Ft. Smith & Western Ry. Co. v. Hutchinson, 71 Okl. 139, 175 P. 922. The general rule is that in cases like the instant case, where the question is whether the insured was in sound health at the time the policy was issued, the liability of the insurer is determined by the actual or real condition of the insured, not by his apparent health, or anyone's belief or opinion as to his health. 37 C.J. 404, Sec. 78; Old Surety Life Ins. Co. v. Hill, 189 Okl. 250, 116 P.2d 910; 40 A.L.R. 662, note. Plaintiff, because of her lack of skill or scientific knowledge, could...
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