New York Life Ins. Co. v. Hunter

• Decision Date: 22 April 1929
• Docket Number: No. 8277.,8277.
• Parties: NEW YORK LIFE INS. CO. v. HUNTER.
• Court: U.S. Court of Appeals — Eighth Circuit

32 F.2d 173 (1929)

NEW YORK LIFE INS. CO. v. HUNTER.

No. 8277.

Circuit Court of Appeals, Eighth Circuit.

April 22, 1929.

G. B. Rose, D. H. Cantrell, J. F. Loughborough, A. W. Dobyns, and A. F. House, all of Little Rock, Ark., for appellant.

Edward B. Downie and Elmer Schoggen, both of Little Rock, Ark., for appellee.

Before STONE, LEWIS, and COTTERAL, Circuit Judges.

COTTERAL, Circuit Judge.

The New York Life Insurance Company appeals from a judgment upon a verdict of a jury in favor of Clara M. Hunter, as the beneficiary in a policy of insurance applied for by her husband in February, 1927, and delivered to him in the following May. The company resisted liability on the ground that the policy was induced by misrepresentations of the assured in his application for the insurance, wherein concededly he declared in answer to certain questions of the medical examiners of the company that the answers were written by him, were full, complete, and true, and he agreed the company "believing them to be true shall rely and act upon them." He answered, "No," to the questions whether he (1) had ever raised or spat blood, (2) had ever taken morphine, cocaine, or other habit-forming drugs, and (3) had consulted a physician for certain named or other diseases; and he answered, "None," to a question as to the names of the physicians he consulted or by whom he had been examined or treated within the past five years.

The evidence shows without dispute that each of the foregoing answers was untrue in fact. It is claimed for the plaintiff that the controversy arising upon the evidence was not whether they were literally correct, but whether they were given honestly and in good faith or otherwise, and it was properly submitted to the jury, upon the authority of Moulor v. American Life Ins. Co., 111 U. S. 335, 4 S. Ct. 466, 28 L. Ed. 447, and other cases following the like principles. For the company, the contention is the answers were material and untrue to the knowledge of the assured thereby invalidating the policy, as ruled in Mutual Life Ins. Co. of New York v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676, 60 L. Ed. 1202, and in other cases wherein the representations were compared with the facts involved, wherefore, the trial court erred in refusing to direct a verdict for the company and in giving and refusing other instructions to the jury. A general instruction was given at the outset in accordance with the Hilton-Green Case, but it was qualified by special instructions which authorized the jury to return a verdict for the plaintiff if certain facts were found in her favor. If the latter instructions were erroneous, the prejudice was not removed by the former instruction. Armour & Co. v. Russell (C. C. A.) 144 F. 614, 6 L. R. A. (N. S.) 602.

We consider first the undisputed evidence bearing upon the answer that the assured had not raised nor spat blood. This had occurred for some years, he complained of this trouble and others to Dr. Norris, said he had been spitting blood and had then just spat up a big mouthful, and the doctor recommended he consult a specialist. The plaintiff testified this had occurred probably once a week at home for five or six years, but assured did not tell her as to its frequency during the day, she had not noticed it for a year prior to his death, he had pyorrhea but she did not know this was the cause, he had his tonsils removed in 1919, his general health at the date of the application was good, nothing was apparently wrong with him before July 1, 1927, when he became ill, and on July 20, 1927, he went to a hospital, with a dropsical condition, dying there on September 16, 1927. His death was due to cancer of the biliary system. Dr. Bledsoe testified that in a case of pyorrhea blood might accumulate from the gums in the mouth and throat. At the hospital, the personal history given by the assured showed in part: "For several years has often sudden occurrence of blood in throat, source unknown."

The jury was instructed that if the assured spat blood occasionally without realizing it was caused from the throat, lungs, or stomach, the fact would not be a failure to correctly answer the question, and it was necessary he recognized and knew it was the result of disease and not some temporary injury or infection of the mouth. This we hold was error, as the assured must have known the blood spitting was not trivial or temporary, and a finding it was so or did not have a deeper source than his mouth would be without any substantial support in the evidence. Again, the inquiry was not concerning a disease so that the jury might pass upon the issue of his honesty and good faith...