Richardson v. N. Am. Life & Cas. Co.

• Decision Date: 02 May 1919
• Docket Number: No. 21154.,21154.
• Citation: 142 Minn. 295,172 N.W. 131
• Court: Minnesota Supreme Court
• Parties: RICHARDSON v. NORTH AMERICAN LIFE & CASUALTY CO.

142 Minn. 295

172 N.W. 131

RICHARDSON

v.NORTH AMERICAN LIFE & CASUALTY CO.

No. 21154.

Supreme Court of Minnesota.

May 2, 1919.

Appeal from District Court, Hennepin County; Chelsea J. Rockwood, Judge.

Action by John N. Richardson against the North American Life & Casualty Company. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Order affirmed.

Syllabus by the Court

In an action to recover upon a life insurance policy, in which misrepresentation of the physical condition of the insured was interposed in defense, it is held that a letter written by a physician, who had treated the insured at about the date of the insurance contract, addressed to the insurance company, and therein stating the physical condition of the insured as he found from examination, was no part of the proofs of death, was not procured at the instance of the beneficiary, as to him was hearsay and inadmissible in evidence.

There was no error in permitting the insured on the trial to read to the jury certain answers to questions found in one of the documents composing the proofs of death. Alvord C. Egelston and Harry S. Swensen, both of Minneapolis, for appellant.

Keith, Kingman, Cross & Wallace, of Minneapolis, for respondent.

BROWN, C. J.

Action upon a policy of life insurance, in which plaintiff had a verdict, and defendant appealed from an order denying a new trial.

The defense to the action was that there was a misrepresentation as to the physical condition of the insured, in that the application did not disclose the fact that she was then suffering from a cancerous growth, for which she had been treated by a physician, and from which she died about a year later. The defense was not sustained by the jury, but no complaint is made of the verdict as not supported by the evidence. The whole case in this court turns on the question whether there was error in the admission or exclusion of evidence on the trial. Two rulings are complained of in this respect, neither of which requires extended discussion.

[1] 1. After the death of the insured, which occurred July 1, 1916, plaintiff, the beneficiary named in the policy, caused proper proofs of death to be prepared and delivered to defendant. They were in all respects full and complete on their face, but disclosed the fact that the insured had undergone a surgical operation in October, 1915, some 2 months after the policy of insurance had been issued, and 9 months before her death. Further investigation and inquiry by defendant disclosed the additional fact that the operation was for the removal of a cancer, with which the insured was then afflicted. From the fact that an operation had been performed so soon after the policy was issued, defendant became satisfied that the cancerous condition of the insured existed at the time the application for insurance was made, and upon that theory its officers set about to learn the true situation. The proofs of death submitted by plaintiff disclosed the names of two physicians who had treated the insured in her lifetime, but the services rendered by them occurred some time after the insurance contract had been entered into. In an effort to ascertain whether the insured had been treated by some other physician at about the date of the contract, considerable correspondence was had between defendant's general agent and plaintiff's attorney; but neither plaintiff nor his attorney knew of such treatment by any physician other than as stated in the proofs of death, and they so stated to defendant in response to inquiries upon the subject. Further pursuit of the inquiry disclosed to defendant from some other source that a Dr. Zwickey had treated the insured at about the date of the contract, and an application to him for information as to the nature of the treatment brought a letter, addressed to defendant, in which he stated that from his examination of the insured he discovered--

‘an extensive old laceration of the cervix, with suspected carcinoma developing at the right of the old laceration. From the history and from my examination I...