Olson v. New York Life Ins. Co.
| Decision Date | 21 January 1941 |
| Docket Number | 45322. |
| Citation | 295 N.W. 833,229 Iowa 1073 |
| Parties | OLSON v. NEW YORK LIFE INS. CO. |
| Court | Iowa Supreme Court |
Appeal from District Court, Palo Alto County; G. W. Stillman, Judge.
Action at law brought by beneficiary against insurer to recover upon life insurance policy. Verdict was directed for plaintiff and motion for new trial overruled. Defendant appeals. Opinion states the facts.
Affirmed.
Milchrist & Marshall, of Sioux City, and Wm. J. Fisher, of Emmetsburg, for appellant.
Kelly & Kelly, of Emmetsburg, for appellee.
Action at law by Fred W. Olson to recover upon a $1,000 policy insuring the life of Frank C. Olson. The application and physical examination of decedent were made December 20, 1938 the policy was issued December 29, 1938, and the assured died May 25, 1939. Defendant set up as an affirmative defense fraud based upon answers to certain questions in decedent's application: (a) Have you ever consulted a physician or suffered from any ailment or disease of the heart, blood vessels or lungs? No. (b) Have you ever consulted a physician for any other ailment or disease? No (c) What physicians have you consulted or been examined or treated by within the past five years? None. Defendant alleged insured was then suffering from pulmonary tuberculosis and had consulted Dr. McCreery, on November 8, 1938, giving the doctor a history indicating tuberculosis and was advised to have tuberculosis tests made. Defendant also alleged that applicant gave the cause of the death of his father and mother as pneumonia and that the cause of the death of each was pulmonary tuberculosis. It was further alleged that each of said answers was falsely made with intent to deceive the examining physician and the insurance company and did so deceive them and did cause the physician to issue a report to the company declaring the applicant to be a fit subject for insurance, and that had the physician known of the falsity of said answers, he would not have so declared and the company would not have issued said policy.
In November, applicant had gone to Dr. McCreery's office complaining of weakness, loss of weight, a cough and dizziness. He had some temperature, high pulse and a stethoscopic examination disclosed bubbling sounds in the lungs. The doctor gave him some medicine to relieve temperature and cough.
Dr. Mueller testified that in the summer of 1938 applicant came to his office for a minor ailment and that in December, 1938, he examined applicant for the life insurance company. Applicant told the doctor he was too young to know what his parents died of or know anything about the cause of their death, and the agent for defendant gave the doctor a slip of paper upon which was written information that answered the questions as to the ages of the parents, causes of death and how long ill, which the doctor copied into the application. In the latter part of January, 1939, Dr. Mueller again examined and treated assured. At that time the doctor found no tuberculosis. His diagnosis was a leukemic condition, which has no connection with tuberculosis and which could very well have developed subsequent to the physical examination in December. Acute leukemia is invariably fatal within a few months.
At the conclusion of the evidence the court sustained plaintiff's motion for directed verdict and later overruled defendant's motion for new trial. Defendant has appealed.
At the outset we are met with appellee's motion to dismiss the appeal for that the abstract of record fails to show the entry of judgment against appellant. As to the judgment itself this motion appears well founded. Deal v. Marten, 214 Iowa 769, 240 N.W. 686; Harmon v. Hutchinson Ice Cream Co., 215 Iowa 1238, 247 N.W. 623; Lotz v. United Food Markets, Inc., 225 Iowa 1397, 283 N.W. 99. But the appeal was also from the motion denying a new trial, the entry of which is shown by the abstract, and is effective as to questions properly raised by said motion.
Appellee's motion to dismiss is also founded upon appellant's failure to properly assign errors as required by Rule 30 of this court. Division I of appellant's brief consists of an omnibus assignment of all the alleged errors in excluding evidence. The form of presentation adopted may have been logical and convenient from the standpoint of appellant, but it does not comply with Rule 30 in various respects. However, in view of the brevity of the record, we have concluded to consider the errors grouped in said division.
Appellant complains that the court refused to permit Dr. Mueller to state what he would have done if the applicant had correctly revealed his medical history of loss of weight and dizziness. The question, as asked, was somewhat different than the foregoing. It called for an answer by the doctor as an X-ray expert, although Dr. Mueller had testified in substance that he was not an X-ray expert. In any event there was no showing or attempted showing as to what the answer would have been. Consequently, no reviewable error is presented. Mitchell v. Automobile Underwriters, 225 Iowa 906, 281 N.W. 832.
The court excluded a purported photostatic copy of a proof of the death of assured furnished defendant by Dr. Mueller. No attempt was made to excuse the non-production of the original, and appellant does not seriously deny that under the best evidence rule, the photostat was not competent. We think the objection covered this point and was properly sustained. Perhaps it should be noted that the doctor testified his statements in said proof as to the cause of death were not based upon his own personal knowledge.
In division II of the brief appellant complains that the record generated a fact question for the jury and that the court erred in sustaining appellee's motion for directed verdict. Before considering this question we will refer to some of the legal propositions involved. Section 8770, Code of Iowa 1939, provides that in any case where a medical examiner or physician of any life insurance company shall issue a certificate of health or declare the applicant a fit subject for insurance, or so report to the company, it shall be thereby estopped from setting up the defense that the assured was not in the condition of health required by the policy, unless the same was procured by or through the fraud or deceit of the assured. This section is applicable to the case at bar. Faber v. New York Life Ins. Co., 221 Iowa 740, 265 N.W. 305; Boulting v. New York Life Ins. Co., 182 Iowa 797, 166 N.W. 278. To establish the affirmative defense of fraud required by this section the proof must be clear, satisfactory and convincing and must show (1) a material representation of an existing fact, (2) its falsity, (3) scienter, (4) intent that it be relied upon, (5) that the examining physician relied and acted thereon, and (6) that the company was thereby defrauded. Ley v. Metropolitan Life Ins. Co. of New York, 120 Iowa 203, 94 N.W. 568; Bohen v. North American Life Ins. Co., 188 Iowa 1349, 177 N.W. 706. The estoppel operates against the insurance company unless the certificate of the examining physician was procured by or through such fraud. Foy v. Metropolitan Life Ins. Co. of New York, 220 Iowa 628, 634, 263 N.W. 14, 17; Stewart v. Equitable Mutual Life Ass'n, 110 Iowa 528, 533, 81 N.W. 782, 783; Weimer v. Economic Life Ass'n, 108 Iowa 451, 79 N.W. 123; Peterson v. Des Moines Life Ass'n, 115 Iowa 668, 671, 87 N.W. 397, 398; Boos v. Mutual Life Ins. Co., 205 Iowa 653, 216 N.W. 50; Mickel v. Mutual Life Ins. Co., 204 Iowa 1266, 1270, 213 N.W. 765, 767.
The answer alleged assured was suffering from pulmonary tuberculosis at the time he applied for and secured the policy. There is no competent evidence to substantiate this contention or to indicate that appellant was not then in good health. Dr. McCreery did not testify assured had tuberculosis or any other serious ailment. Nor did the examining physician find evidence of tuberculosis in his original examination or later when he attended assured. His later examination disclosed assured was then suffering with acute leukemia, which probably had developed subsequent to the former physical examination. That disease, which is invariably fatal within a few months, has no connection with tuberculosis.
It was also alleged that decedent gave the death of his parents as pneumonia and that the cause of the death of each was pulmonary tuberculosis....
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