Scott v. Metropolitan Life Insurance Company of New York

• Decision Date: 21 November 1941
• Docket Number: 31204
• Parties: GUY N. SCOTT ET AL., APPELLEES, v. METROPOLITAN LIFE INSURANCE COMPANY OF NEW YORK, APPELLANT
• Court: Nebraska Supreme Court

300 N.W. 835

140 Neb. 581

GUY N. SCOTT ET AL., APPELLEES, v. METROPOLITAN LIFE INSURANCE COMPANY OF NEW YORK, APPELLANT

No. 31204

Supreme Court of Nebraska

November 21, 1941

APPEAL from the district court for Pawnee county: VIRGIL FALLOON JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. The introduction in evidence of a proof of death by the physician of the assured, containing statements as to the cause of death, does not ordinarily waive the provisions of the statute against physicians testifying concerning information received in the course of professional employment.

2. Whether the failure of an assured to answer completely the questions asked regarding previous consultations with physicians is a sufficient misrepresentation to avoid a policy of insurance is a question for the jury, where the evidence is not conclusive that said misrepresentation was material to the insurance risk or that it was made with intent to deceive or defraud.

3. In order to defeat a recovery because of the falsity of a representation, the company must show that the representations made were false, that they were made knowingly by the assured with intent to deceive, that they were material to the risk and relied upon by the company.

4. If the evidence be in conflict upon any one or all of the elements constituting the foregoing defense, the question is one for the jury.

Appeal from District Court, Pawnee County; Falloon, Judge.

Action on a life policy by Guy N. Scott and another against the Metropolitan Life Insurance Company of New York. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Beghtol Foe & Rankin and Walter E. Nolte, for appellant.

Kenneth S. Wherry, contra.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.

OPINION

CARTER, J.

This is an action at law to recover $ 1,000 alleged to be due the plaintiffs on a policy of life insurance written by the defendant upon the life of Hazel S. Scott, plaintiffs' mother. From a verdict and judgment for plaintiffs the defendant appeals.

The record shows that the policy was issued on March 7, 1939, and that all premiums had been paid. The defendant alleges, however, that the assured made false and fraudulent statements in making application for the policy by stating that her health was excellent when she was in fact suffering from cancer, and by stating that she had consulted no physicians, healers or other practitioners and attended no clinics or hospitals during the five years immediately prior to making the application, except one, when in truth and fact several doctors had been consulted during the period. Defendant alleges that said false and fraudulent statements were relied on by the company in accepting the application, and by their medical examiners in making the medical examination, to such an extent that the policy would not have been issued if such false and fraudulent statements had not been made. These issues were submitted to the jury and decided favorably to plaintiffs.

The defendant complains chiefly on the refusal of the trial court to admit certain testimony of Dr. C. W. Thomas in evidence. The offer of proof made shows that Dr. Thomas would testify that during the years 1931 to 1935, inclusive, on occasions when the relationship of physician and patient existed, he had diagnosed the case of Hazel S. Scott as cancer and that he had at that time advised her of this condition. Was this evidence admissible? We think not.

Our statute, section 20-1206, Comp. St. 1929, bars such evidence as incompetent upon objection being made that it is a privileged communication. Under section 20-1207, Comp. St 1929, it is provided that such evidence may be admitted if the privilege be waived or if the party in whose favor the privilege exists shall offer evidence with reference to the physical or mental condition of the person involved, or the alleged cause...