Newton v. The New York Life Insurance Company

• Decision Date: 08 May 1915
• Docket Number: 19,457
• Citation: 95 Kan. 427,148 P. 619
• Parties: MINNIE M. NEWTON, Appellee, v. THE NEW YORK LIFE INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

148 P. 619

95 Kan. 427

MINNIE M. NEWTON, Appellee, v. THE NEW YORK LIFE INSURANCE COMPANY, Appellant

No. 19,457

Supreme Court of Kansas

May 8, 1915

Decided. January, 1915.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIFE INSURANCE--When Misrepresentations as to Health Will Not Defeat Policy. The withholding or misrepresentation of facts in an application for life insurance will not defeat the insurance policy unless those facts, thus withheld or misrepresented, pertain in some degree to the malady which occasions the death of the assured, following section 4200 of the General Statutes of 1909.

2. SAME--Presumptions as to Statute of Another State. In the absence of pleading or proof there is a presumption of law that the insurance laws of another state are like our own following Furrow v. Chapin, 13 Kan. 107, and cases cited in the opinion.

3. SAME--Findings Sustained by Evidence. Record examined and evidence held to sustain the jury's special findings of fact.

A. W. Benson, of Topeka, W. B. Brownell, of Lawrence, and James H. McIntosh, of New York, N. Y., for the appellant.

S. D. Bishop, of Lawrence, for the appellee.

OPINION

DAWSON, J.:

This is an appeal from a judgment of the district court of Douglas county in favor of the beneficiary of a life insurance policy.

James D. Newton had been an officer of the United States Revenue Cutter Service, and was retired in 1901 on account of tuberculosis; and at various times in the years 1901, 1902, 1903 and 1904 he was in a federal sanitarium at Fort Stanton, N. Mex., on that account. July 7, 1904, he was discharged from the institution as unimproved.

In 1898 Newton had received a policy of insurance from the defendant. In 1905, he procured another policy from the same company. On October 5, 1911, he received a third policy from the defendant. Newton and his family resided in Chicago, Ill., at the time this third policy was issued. He died in that city on August 8, 1912, following a surgical operation for an ulcer in the stomach; and it is the refusal of the defendant to pay this third policy which gives rise to this lawsuit.

To justify this refusal the defendant alleged that Newton had misrepresented the facts in his application for the policy; that he avowed that he had never suffered from any disease of the lungs except in 1898 at which time he was ill with grippe and "dodging pneumonia"; that he had never suffered from any disease of the stomach or intestines except in 1906 when he had typhoid fever; that he had never consulted any physician except at these instances of pneumonia and fever; that no insurance company had examined him for insurance without issuing him a policy; that these statements and representations were false and Newton knew they were false and made them for the purpose of defrauding the defendant; and that if defendant had known the truth it would have declined the application and would not have issued the policy. Defendant tendered the return of the premium. The plaintiff beneficiary replied by denying that Newton, her husband, had made any false and fraudulent representations, and alleged that he had made a full and complete disclosure concerning the condition of his health; and replied further that the defendant knew the condition of Newton's health not only at the time the application was made but had known the condition of his health long prior thereto, in 1898 when it issued to him its first policy, and in 1905 when it issued to him its second policy, and that defendant had the data concerning these in its files, and Newton's prior applications fully disclosed his condition of health; and that at the time of the application for the policy issued in 1911 the defendant's medical examiner was fully apprised of the condition of Newton's health. The other allegations of the answer were traversed.

The jury made the following findings of fact:

"1. Did the insured, James D. Newton, in the application signed by him for the policy sued on in this case, make full, complete and true answer to question No. 8 in said application, which was in words and figures as follows: 'Has any life insurance company ever examined you, either on an application for insurance or for any other reason without issuing a policy? (If so, state name of company.)' To which question the said James D. Newton answered 'No.' Answer to question No. 1.--Yes.

"2. Did the insured, James D. Newton, in the application signed by him for the policy sued on in this case make full, complete and true answer to question No. 9, section B, in said application, which is in words and figures as follows: 'Have you had or suffered from any of the following diseases? Answer "Yes" or "No" to each part of this query below. Give explicit and particular answers in each case. Of the heart or lungs?' To which question the said James D. Newton answered as follows: 'Yes. Pneumonia. One attack in 1898.' Answer to question No. 2.--Yes.

"3. Did the insured, James D. Newton, in the application signed by him for the policy sued on in this case make full, complete and true answer to question No. 9, section C, in said application, which was in words and figures as follows: 'Have you had or suffered from any of the following diseases? Answer "Yes" or "No" to each part of this query below. Give explicit answers and particulars in each case. Of the stomach or intestines, liver, kidneys, or bladder?' To which question the said James D. Newton answered as follows: 'Yes. Typhoid fever. One attack in 1906. Eight weeks' duration. Moderate severity. Recovery after rectal abscess.' Answer to question No. 3.--Yes.

"4. Did the insured, James D. Newton, in the application signed by him for the policy sued on in this case make full, complete and true answer to the question No. 10 in said application, which was in words and figures as follows: 'Have you ever consulted any physician for any illness not mentioned above?' To which the said James D. Newton answered as follows: 'No.' Answer to question No. 4.--Yes."

The substance of this appeal is that the special findings are contrary to the evidence and that the court erred in presuming that the Illinois law is like our own. (Gen. Stat. 1909, § 4200.)

On the first of these contentions there is much that could be said. Defendant certainly made a strong case of misrepresentation, but if the evidence was contradictory, the determination of it was for the jury. We lay aside the matter of tuberculosis because there is abundant evidence that Newton had completely recovered from that malady and it had nothing to do with his death. The death certificate reads:

"11. a. What disease was the immediate cause of death? Ans. Perforation of stomach due to ulcer.

"12. a. From what other important diseases, if any, did deceased suffer? Ans. None."

The hospital surgeon testified that after the operation for the ulcer Newton suddenly developed peritonitis. He did not think the ulcer was of long standing.

As to stomach trouble, Newton told the defendant's examiner he frequently had indigestion. Some of the medical expert witnesses classified indigestion as a disease and some said it was not. The medical examiner testified that he did not set down in the application blank the matters which he deemed inconsequential. (Insurance Co. v. Davis, 59 Kan. 521, 53 P. 856.)

There is a sharp conflict in the evidence as to whether Newton falsified in his application in response to the question set out in the fourth finding of fact. From the printed page, we would say that the defendant made the stronger showing, but the trial court and jury had a better opportunity to determine that question than we have, and it was the jury's province and not ours. Moreover, the burden of proof was on the defendant, and the jury apparently concluded that the defendant did not maintain that burden. There was evidence on both sides, and the fourth finding of fact is conclusive.

A serious difficulty in this case lies in the answer of Newton to the question in his application:

"Question: Has any life insurance company ever examined you, either on an application for insurance or for any other reason without issuing a policy? . . . Answer: No."

The assistant medical director of the Illinois Life Insurance Company who had under his control the applications for life insurance in that company was a witness for the defendant and he produced and identified a photographic copy of an application made by Newton in March, 1908, to his company. Another witness was the medical examiner for that company who set down Newton's answers to the questions in that...