Olsson v. Midland Insurance Co.
| Decision Date | 07 December 1917 |
| Docket Number | 20,558 |
| Citation | 165 N.W. 424,138 Minn. 424 |
| Parties | ALMA OLSSON v. MIDLAND INSURANCE COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $1,000 upon defendant's policy of insurance. The facts will be found in the opinion. The case was tried before Cant, J., and a jury which returned a verdict for the amount demanded. Defendant's motion for judgment notwithstanding the verdict was granted. From the judgment entered pursuant to the order for judgment, plaintiff appealed. Reversed.
Insurance -- material misrepresentations in application.
1. Representations that the insured had not had fits or hernia or received medical or surgical attention within five years are material under a statute avoiding a policy for misrepresentations which "materially affected either the acceptance of the risk or the hazard assumed."
Insurance -- evidence not conclusive.
2. The evidence does not conclusively show that the representation that the insured had not had fits or hernia was false.
Insurance -- evidence not conclusive.
3. The evidence does not conclusively show that a representation that the insured had not received medical or surgical attention within five years was false.
Insurance -- evidence not conclusive.
4. The evidence does not conclusively show that statements contained in the application of the insured to the effect that he had never had fits or hernia and had not received medical or surgical attention within five years were knowingly made.
Insurance -- insured not charged with knowledge of representation.
5. That a copy of the application is attached to the policy as is required by statute, and retained by the insured, does not as a matter of law charge him with knowledge of the representations written therein or estop his beneficiary from showing that they were not in fact made.
Insurance -- liability for suicide when insane.
6. Under an accident policy silent as to the effect of suicide the insurer is liable though the insured committed suicide if at the time he was insane.
Insurance -- judgment notwithstanding the verdict error.
7. The evidence did not conclusively show that the insured knowingly made false representations as to hernia, fits or medical or surgical attention and judgment for the defendant notwithstanding the verdict for the plaintiff should not have been entered.
W. H Gurnee, for appellant.
Benton & Morley and Crassweller, Crassweller & Blu, for respondent.
This is an action on a health and accident policy issued by the defendant to Bert Olsson. The plaintiff, his wife, was the beneficiary. There was a verdict for the plaintiff. Upon the defendant's alternative motion for judgment or a new trial judgment notwithstanding the verdict was ordered. From the judgment the plaintiff appeals.
The policy was issued on August 4, 1914. On December 25, 1915, Olsson came to his death from a gunshot wound. The defendant claimed that Olsson in his application made false representations, with intent to deceive, and of a character avoiding his policy, in these respects: (a) That he had never had hernia; (b) that he had never had fits; (c) that he had not received medical or surgical attention within five years. The plaintiff denied that such representations were false, or that they were knowingly made. As a further and independent defense the defendant claimed that Olsson committed suicide. The plaintiff denied this and alleged that if he did he was insane at the time. The court charged the jury that the alleged representations were material under the statute, and left it to them to say whether they were knowingly made, and whether they were false; and it instructed them that the fact that Olsson committed suicide did not prevent a recovery if he was insane at the time. The verdict was general. Upon the record presented the judgment is right if any one of these representations was material within the meaning of the statute, and was knowingly made, and if it was false; or, regardless of these, if Olsson committed suicide, unless he was insane at the time. The motion for judgment was granted upon the ground that certain of the representations were false and were knowingly made. In the review on appeal it should be in mind that the jury found against the defendant; and the question is whether the evidence is such as to justify a judgment notwithstanding the verdict.
1. The statute applicable to false statements in a policy is as follows:
"The falsity of any statement in the application for any policy covered by this act shall not bar the right to recovery thereunder unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer." G.S. 1913, § 3527.
If Olsson made any of the representations charged falsely, with intent to deceive, or, regardless of such intent, if such false representation affected either the acceptance of the risk or the hazard assumed, the plaintiff cannot recover. See Johnson v. National Life Ins. Co. 123 Minn. 453, 144 N.W. 218, Ann. Cas. 1915A, 458, and cases cited. The question of fraudulent intent is not material for consideration upon this appeal. Evidence of it is very slight, in fact there is none at all except by way of inference, and it is not claimed to be conclusive or at most more than a question for the jury. Besides if the representations were material in fact, as we hold, the question of intent to deceive becomes unimportant. The representation that the insured never had fits was material. See Reynolds v. Atlas Acc. Ins. Co. 69 Minn. 93, 71 N.W. 831. And so was the representation that he had not received medical or surgical attention for five years. See Rupert v. Supreme Court U.O.F. 94 Minn. 293, 102 N.W. 715; Silverstein v. Knights & Ladies of S. 129 Minn. 340, 152 N.W. 724; Wheelock v. Home Life Ins. Co. 115 Minn. 177, 131 N.W. 1081. Of course in a particular case the attention might be so slight and of so little bearing upon the acceptance of the risk or the hazard as to be negligible. Whether the representation as to hernia was as a matter of law material is of greater doubt. It appears that policies are written, though the application discloses hernia, with a rider attached excepting liability for an injury arising because of it. The evidence upon the point is meager and the question has not been particularly considered by counsel. In this state of the record we hold the representation material.
2. The evidence does not conclusively show that Olsson was suffering from hernia or from fits or had been affected with either when he made his application. It would sustain a finding that he was. It sustains a finding that he was not. The burden was upon the defendant.
3. A physician testified that he treated Olsson medically and surgically some 50 or 60 times within the year prior to his application. This is the only evidence of medical or surgical attention and if true it is enough. The physician kept no record of his treatments or of dates. Olsson's wife received treatments from the same physician about the same time. The physician did not mention to her that her husband was receiving treatments. She never heard of her husband consulting the physician. He did not tell her. The question is whether the evidence so conclusively shows that Olsson received treatments from the physician that it must be so declared as a matter of law upon a motion for judgment notwithstanding.
The doctrine in this state, in harmony with the holdings elsewhere, is that uncontradicted testimony which is unimpeached and not improbable cannot be arbitrarily disregarded but must be given effect. Second Nat. Bank of Winona v. Donald, 56 Minn. 491, 58 N.W. 269; 1 Moore, Facts, § 66, et seq., and cases cited. But a jury is not bound to accept testimony as true, merely because uncontradicted, if improbable, or where the surrounding facts and circumstances or what is developed on cross-examination furnish reasonable grounds for doubting its credibility. Hawkins v. Sauby, 48 Minn. 69, 50 N.W. 1015; Anderson v. Liljengren, 50 Minn. 3, 52 N.W. 219. In Burud v. Great Northern Ry. Co. 62 Minn. 243, 64 N.W. 562, Justice Mitchell said: "The fact that there is no conflict in the testimony does not make the case one for the court instead of the jury, if the evidence is for any cause inconclusive in its nature as, for example, where different conclusions may be reasonably drawn from it, or where its credibility is doubtful." The principle was recently applied in Jensen v. Fischer, 134 Minn. 366, 159 N.W. 827, to the testimony of an interested witness. The burden of proof was upon the defendant. Olsson is dead and the testimony of the physician cannot be directly met. It is not corroborated and is perhaps weakened by the fact that no record was kept. This unexplained the jury might think unusual. Again the jury might think it unlikely that so many treatments would have been given without Olsson's wife learning of them either from her husband or the physician who was also her physician or by other means. The evidence is persuasive that Olsson received medical attention as the physician claimed. The question before us is whether it so conclusively appears that he did that it could be so declared on a motion for judgment notwithstanding. We are of the opinion that it is not of that conclusive character.
4. Olsson's application was taken...
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