Phoenix Mut. Life Ins. Co. v. Brenckman

• Decision Date: 04 May 1961
• Citation: 171 A.2d 194,148 Conn. 391
• Court: Connecticut Supreme Court
• Parties: PHOENIX MUTUAL LIFE INSURANCE COMPANY v. Phyllis A. BRENCKMAN et al. Phyllis A. BRENCKMAN v. PHOENIX MUTUAL LIFE INSURANCE COMPANY. Supreme Court of Errors of Connecticut

Page 194

171 A.2d 194

148 Conn. 391

PHOENIX MUTUAL LIFE INSURANCE COMPANY v.Phyllis A. BRENCKMAN et al.

Phyllis A. BRENCKMAN v.PHOENIX MUTUAL LIFE INSURANCE COMPANY.

Supreme Court of Errors of Connecticut.

May 4, 1961.

Bruce W. Manternach, Hartford, with whom was Lee C. Fielden, Hartford, for appellant(plaintiff in first case and defendant in second).

John S. Murtha, Hartford, with whom was William M. Cullina, Hartford, for appellee(defendant in first case and plaintiff in second).

Before KING, MURPHY and MELLITZ, JJ., and BORDON and ALCORN, Superior Court Judges.

MURPHY, Associate Justice.

These two cases were tried together and the appeals have been combined.Both actions arise out of a retirement income policy issued by the Phoenix Mutual Life Insurance Company to Wayne D. Brenckman on February 28, 1956.The policy also provided a death benefit of $24,000 payable to Phyllis A. Brenckman, wife of the assured as beneficiary, and was incontestable after two years.Brenckman died December 31, 1957.The company refused to pay the death benefit to Mrs. Brenckman.In the first case, which is an action in equity against Mrs. Brenckman individually and as executrix of her husband's estate, the company asks a judgment rescinding the policy and declaring it void on the ground that the assured made false statements of material facts in his application for insurance, on which the company relied in issuing the policy.The issues of fact in this equitable action were tried to the jury, which answered two interrogatories.General Statutes, § 52-218;Practice Book, §§ 149, 150.The court rendered judgment for Mrs. Brenckman as beneficiary in accordance with the jury's answers.The second case is an action by Mrs. Brenckman as beneficiary to recover the death benefit provided for in the policy.The jury returned a verdict for her.The company appealed from both judgments.

Many of the facts in these cases are not in dispute.In November, 1955, the company issued a retirement income insurance policy to Brenckman after he had passed a medical examination performed by Dr. Daniel Marshall, who examined for this and other companies.The insurance had been solicited and sold by Jerome E. Howard, an agent of the company, who arranged for the physical examination.Dr. Marshall submitted a special heart report to the company in which he stated that Brenckman's heart was normal.About three months later, Howard sought to sell another retirement income policy to Brenckman.On February 28, 1956, Dr. Marshall made another examination of Brenckman, in which an electrocardiogram was taken, found that Brenckman had heart disease, and so advised Howard.Howard, after talking with Brenckman, who disagreed with Dr. Marshall's findings, arranged for a further physical examination of Brenckman on the same day.That examination was conducted by Dr. Raymond R. Marsh, who also examined for the company.Dr. Marsh heard a heart sound which he did not consider significant, but he noted it in his report to the company.He found Brenckman satisfactory for insurance purposes.Brenckman did not tell Dr. Marsh about Dr. Marshall's examination and his findings.In response to questions put by Dr. Marsh, Brenckman replied that he had never had heart trouble, shortness of breath, an electrocardiogram or any physical examination which disclosed any disorder or abnormal physical condition.His answers were written on the application by Dr. Marsh.Brenckman then signed the application, certifying to the truth of the answers he gave.Howard, in his report to the company, recommended issuance of the policy and stated that a special heart report was required.No special heart report was obtained by the company.On March 12, 1956, Brenckman signed an amendment to his February 28 application in which it was stated, 'I have had no symptoms, diseases or disorders for which I have sought treatment or advice; and * * * I am now in good health so far as I know and believe.'Brenckman had, however, been treated on March 2 and 6 by Dr. Marshall for his heart condition and was taking digitalis.On February 28, he had been told by Dr. Marshall that he had heart disease and needed treatment.

In its request for a finding and draft finding, the company included in its claims of proof a number of paragraphs of facts which it claimed it had offered evidence to prove and had proved, but the court did not include them in the finding.Error is assigned in their omission.Where a party seeks additions to his own claims of proof in a case tried to the jury, the additions should be made if they are material and are supported by the evidence.Castaldo v. D'Eramo, 140 Conn. 88, 93, 98 A.2d 664.Without the additions to which the company is entitled, it is impossible to test the claimed errors in the charge.The finding is corrected by adding a sentence, 'At that time the assured knew that he was undergoing treatment for heart disease,' to paragraph 3, and also by adding paragraphs 13, 14, 16, 17, 18, 20, 23, 29 and 30 of the draft finding to the company's claims of proof.

The company claimed that until Brenckman filed a claim for total disability benefits under the policy shortly before he died, it had no actual knowledge of the heart condition disclosed by Dr. Marshall's examination, since neither Dr. Marshall nor Howard had conveyed that information to the company.The beneficiary maintained that both Dr. Marshall and Howard were agents of the company, that any information they acquired was knowledge of the company, and that if the information was not actually transmitted to the company, it was imputed to it...