Olinger Mut. Ben. Ass'n v. Christy
| Decision Date | 08 June 1959 |
| Docket Number | No. 18300,18300 |
| Citation | 139 Colo. 425,342 P.2d 1000 |
| Parties | OLINGER MUTUAL BENEFIT ASSOCIATION, Plaintiff in Error, v. James S. CHRISTY, Defendant in Error. |
| Court | Colorado Supreme Court |
Dayton Denious, Omer Griffin, Denver, for plaintiff in error.
Carmel A. Garlutzo, Trinidad, for defendant in error.
Olinger Mutual Benefit Association (referred to in this opinion as the 'Association') seeks to have reversed the judgment entered against it on the policy of insurance it issued on the life of Mary Theresa Christy (designated herein the 'insured'). The Association was unable to prevail on its theory that the policy was procured through misrepresentation and fraud, and asserts as error the adverse determination of the trial court in this respect.
Too facile a resolution would be reached by resorting to the rule that misrepresentation of a material matter gives cause for avoidance of an insurance contract by the insurer. That indeed would be decisive if the evidence in support of alleged invalidating misrepresentation and fraud, thrown on the scales, tipped the beam to the point indicating sufficient proof. Our problem is not the application of a principle, for that follows once enough evidence is introduced to implicate it; rather, it is the evaluation of the evidence.
The policy in question was issued on December 30, 1950. James S. Christy, insured's son, was nominated as beneficiary in the policy. At the time of the application for, and the issuance of, the policy the insured was living in Denver, and James at 'P. O. Box 27, Aguilar, Colo.'
The application for the policy was made by James, and so far as the record discloses the insured knew naught about the application or its contents. And further, there is nothing in the record to indicate that James designedly deceived in making answers to the information sought in the application. In other words, the record is devoid of anything indicating that James had not made full disclosure insofar as his personal knowledge of the insured's physical condition obtained.
Items 4, 5 and 6 of the application furnish the key to the problem which must be resolved. These items are as follows:
'4. Does any person above named now have or did he or she ever have any of the following: Heart trouble, high blood pressure, tuberculosis, paralysis, insanity, cancer, epilepsy, goitre tumor, syphilis, kidney trouble, diabetes, physical injury or surgical operation? Yes If yes, give details in Number 6.
'5. Has any person above named been attended by a physician or practitioner for treatment or been admitted to a hospital or sanitarium in the past three years? No If yes, give details in Number 6.
"6. Name Nature of Illness Date Duration Result Name and Address of
or Injury Attending Physician
-----------------------------------------------------------------------------
Mary Severe case of 1944 1 week complete Park View Hospital
flu (not cure Pueblo, Colo
pneumonia)
slight touch past 15 kept Dr. Baker, M.D
High blood years normal by
pressure diet at
present "
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(Emphasis supplied.)
All answers given in response to the information sought are in the handwriting of the Association's agent. Also appearing in his handwriting is the direction that the policy is to be rated up, and in another handwriting there is a notation One C. W. Jackson testified at the trial that he was the officer of the Association who examined and approved the application, and that the policy issued solely as a result of the consideration of the application.
On January 30, 1951 the insured died, and thereafter the necessary steps were duly taken by James to collect the proceeds of the policy. His claim was refused, and he rejected tender made to him of the premium which he had paid. Suit thereupon was filed to recover on the policy.
The Association answered the complaint, asserting five defenses, the third and fourth of which are the only ones necessary to a proper disposition of this case. In its third defense the Association averred that it 'was induced to issue the policy * * * by the fraud and misrepresentation of the plaintiff, James S. Christy.' Its fourth defense contained the following allegations:
'Because of this fraud and misrepresentation and promptly on discovery thereof, defendant elected to rescind the policy and tendered refund of the $7.70 premium.'
At the trial the written statement of Dr. Altieri, M.D., prepared and submitted to the Association as part of proof necessary to collect proceeds of the policy, was admitted in evidence at the request of the Association. The following question and answers appear in this statement:
'3. How long have you known Deceased? Since 4/19/49
'4. How long have you been the attending physician? Since 4/19/49
'5. Have you ever attended or prescribed for the Deceased prior to last illness? No * * *
'6. Has Deceased received treatment from other physicians? No
* * *
* * *
'8. Date of first visit or prescription in last illness 4/19/49
'9. Date of your last visit 1/30/51
'10. When, in your opinion, was health first impaired? 4/19/49
'11. What disease caused death? (1) Arteriosclerotic heart disease and cardiac decompensation; (2) generalized arteriosclerosis and malignant hypertension.
'12. When did Deceased first commence to show symptoms of the disease which caued death? 4/19/49
The Association also introduced in evidence claimant's written statement, also part of necessary preliminary establishment of claim, from which we quote the following pertinent part:
'5. State all facts regarding the cause and circumstances of death Had vomiting spells for about a week--taken to Hospital Jan. 19th--Jan. 22nd had a heart attack and placed in oxygen tent and never recovered.
'6. State precise duration of the last illness of Deceased see above
There is ambiguity in the attending physician's statement. He stated that he had never attended nor prescribed for the deceased prior to last illness; that his 'first visit or prescription in last illness' was on April 19, 1949, and his last visit on January 30, 1951; and that the insured first commenced to show symptoms of the disease causing death on April 19, 1949. The answers of the doctor leave it doubtful as to whether he first visited or prescribed for the insured on April 19, 1949.
In his application James answered 'yes' to the question asking whether the insured had any of a number of diseases. Among the diseases enumerated were heart trouble and high blood pressure. As required by the application he detailed that insured suffered from high blood pressure. He did not mention heart trouble, and the only matter that might indicate misrepresentation on this score is Dr. Altieri's statement that the insured commenced to show symptoms of this disease on April 19, 1949.
James stated in the application that the insured had not 'been attended by a physician or practitioner for treatment or been admitted to a hospital or sanitarium in the past three years.' (Emphasis supplied.) Refutation of this statement, if refutation can be made, lies in the doctor's statement that he first visited or prescribed in last illness on April 19, 1949. If it were a visit by the doctor, the statement is not necessarily false.
To be considered by the trial court in evaluating the evidence before it was claimant's written statement in which it appears that the last illness of the insured commenced on January 19, 1951. This statement, introduced as an exhibit by the Association, does not have inhering in it the frailty of testimony of an adverse party elicited by leading questions under Rule 43(b), R.C.P. Colo. This rule is designed to permit refutation by the adverse party of testimonial evidence only. '[W]hile the full statement of a party, when his admission is resorted to as evidence against him, must be received, it does not follow that every part must necessarily be credited; they are before the jury to be considered and weighed precisely as other evidence.' Nitro Powder Co. v. Kearns, 50 Colo. 1, 114 P. 396, 399.
The third and fourth defenses are affirmative in nature; in effect they admit the issuance and existence of the policy of insurance, but seek to avoid the contract on the ground of misrepresentation and fraud. Was the evidence of a character and weight sufficient to sustain these defenses? The answer to this question strikes at the heart of the problem of this case.
A policy of insurance is a contract. As a contract it is not sui generis. In most respects an insurance contract is treated in the law in the same way as any other contract. North American Accident Ins. Co. v. Cochran, 74 Colo. 515, 223 P. 28....
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