Scott v. New England Mut. Life Ins. Co.
| Decision Date | 01 May 1935 |
| Docket Number | 28774. |
| Citation | 260 N.W. 377,128 Neb. 867 |
| Parties | SCOTT v. NEW ENGLAND MUT. LIFE INS. CO. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In a law action where the case is presented to the jury under proper instructions, a verdict based upon conflicting evidence will not be set aside on appeal unless clearly wrong.
2. Evidence examined, and held sufficient to support the verdict.
3. Where the agent of a life insurance company takes an application for a policy and assumes the responsibility of answering the questions presented in such application answers such questions falsely, and without the applicant having made any statement in connection therewith or knowing the manner in which they were answered, the insurer will be estopped to claim that such representations were false.
4. Where both the statutes and the contract for life insurance embody provisions that only such statements as are contained in the application, a copy of which is attached to the policy and indorsed thereon, shall be used in defense of a claim under the policy, a medical examiner's report, which was not contained in the policy, nor attached thereto, nor indorsed thereon, is not admissible in evidence in an action upon such policy.
5. It is not error for a trial court to incorporate in its instruction defining the issues the substance of the pleadings which set forth such issues.
6. Where in an action upon a life insurance policy to recover for physical disability arising under the provisions thereof, the court instructs the jury as to what constitutes physical disability, no error having been predicated thereon, the insurer will be considered as accepting the court's version of the law applicable to the facts.
Appeal from District Court, Douglas County Fitzgerald, Judge.
Action by Walter A. Scott against the New England Mutual Life Insurance Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Wm. Baird & Sons, of Omaha, for appellant.
Brogan, Ellick & Van Dusen, of Omaha, W. A. Stewart, Jr., of Lexington, and Robert B. Hamer, of Omaha, for appellee.
Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE, and CARTER, JJ., and CHASE, District Judge.
This is an action founded upon two disability contracts attached to life insurance policies. The case was tried to a jury, resulting in a verdict for the plaintiff, and from an order overruling a motion for new trial the defendant brings the record to this court for review.
The case has been twice considered by this court on previous occasions, and opinions written in each instance. Scott v. New England Mutual Life Ins. Co., 126 Neb. 514, 253 N.W. 685; Id., 127 Neb. 724, 256 N.W. 910.Afterward a second rehearing was allowed, and it is again before us for decision.
The appellee, who was plaintiff below, alleges in his petition that on the 18th day of July, 1928, the appellant, who was the defendant below, issued two life insurance policies to appellee, each in the sum of $5,000; that attached to each policy was a disability contract in which the company agreed to pay to plaintiff, for a consideration of $7.50 additional premium, if the plaintiff subsequently became wholly and permanently disabled from disease or other cause, the sum of $50 a month. About the 1st of May, 1931, while the policies were in full force and effect, the appellee became wholly and permanently unable to engage in his usual and customary occupation, or any occupation or profession, or to perform any work whatsoever for compensation, because of a disease of his right testicle.
The appellant, in its answer, denied obligation and lia bility under the disability contracts, for the reason that the appellant was induced to enter into the same through fraud, false representations and warranties, and concealment of material facts concerning the condition of his health, in that he stated in the application for insurance that he never had any serious illness or disease; that no member of his family had been afflicted with tuberculosis.
The facts are substantially as follows: Prior to the issuance of the policies appellee was, and still is, a farmer engaged chiefly in agriculture as an occupation; that the appellant issued and delivered two policies of life insurance in the sum of $5,000 each, dated July 18, 1928; that attached to each of these policies was a physical disability agreement which provided that for a consideration of $7.50 additional, upon receipt of proof that the insured has become physically and mentally incapacitated so as to be wholly and permanently unable to engage in any occupation or profession, or perform any work whatsoever for compensation, gain or profit, occurring while the policy and agreement are in full force, the company will pay to the insured a monthly income of $50, and waive payment of premiums thereafter due upon the policy; that in the latter part of 1927, after consulting his local physician, plaintiff found he had some disease of the right testicle, whereupon he consulted Doctor Davis, a physician and surgeon in Omaha, who pronounced his trouble tuberculosis of the epididymis. The epididymis, according to medical lexicographers, is a prolonged vermiform greyish body lying along the superior margin of the testicle. In January, 1928, Doctor Davis performed a surgical operation upon the plaintiff and removed his right testicle. This operation was performed about six months before the issuance of the policies under which this plaintiff claims indemnity.
Several assignments of error are relied on for reversal. Some are so involved with others that it will not be necessary to discuss all in order to properly dispose of the case. One complaint is that the evidence is insufficient to sustain the judgment. Since the case has been presented to this court twice previously, we have examined the record with unusual care. The disputed issues of fact which were presented to the jury under the pleadings and evidence may be epitomized in two statements: First, was appellant induced by the appellee to write each of these contracts by fraud, false representations and warranties, and concealment of material facts sufficient to avoid liability? Second, has the plaintiff suffered a disability of such a character as is contemplated by the contracts?
The evidence as to the first proposition is seriously in conflict. The appellee testifies that the answers to the questions in the application for insurance were written by the appellant's agent through whom he procured the insurance, that he did not know that the application contained such questions or answers, and that no question was ever asked him by the agent, and he made no answers to any of them.
The agent who took the application testified that he read every question to the appellee, and that the appellee answered the same and the agent recorded the answers of the appellee in the blank spaces following each question.
As to the matter of disability, the testimony shows that since 1932 the appellee, due to this disease of the testicles, has been unable to carry on the usual duties of a farmer; that he was unable to do heavy work about the farm, but did perform such labor as caring for and feeding a few head of live stock in connection with which he shoveled corn and pitched hay in such quantities as was necessary to feed the same; that he also worked at different kinds of employment at short intervals and received compensation therefor; that he played a few sets of tennis on several occasions in the summer of 1931. No witness appears to have been called on the part of appellant to dispute the plaintiff's testimony in this regard.
It will be observed that these disputed issues of fact were submitted to the jury, and the jury resolved both against the appellant. The effect of the jury's verdict is that they did not believe appellee was guilty of fraud or concealment of material facts, or breach of warranty, in procuring the policies, and that he had suffered a permanent total disability within the meaning of such contract.
In reviewing a law action, this court does not try the case de novo, and will not concern itself with the question as to whether the jury reached the proper conclusion of fact, where no errors of law were committed in submitting the questions to them. However, there are some exceptions to this rule, such as where it appears that the verdict is clearly wrong; the result of passion or prejudice; or contrary to the physical facts. For an appellate court to hold that it has the legal authority to set aside the verdict of a jury in all cases where it might disagree with the conclusions of fact reached by such jury would have the indirect effect of abolishing the jury system, and thus deprive the citizen of a highly prized and constitutionally guaranteed right.
In the cases which we have examined where the courts hold that false representations and concealment of material facts avoid liability on insurance policies, the question arose because the trial court had sustained a peremptory instruction and directed a verdict for the defendant, holding the evidence was insufficient to support the plaintiff's theory. All those cases were affirmed on the theory that the fraud and misrepresentation were established so clearly that a verdict for the plaintiff could not be sustained. In this case the situation is distinctly different. As we have said before the evidence as to fraud and misrepresentation is conflicting, and, being conflicting, the question was one for the jury. It will be remembered in this case that the appellee's evidence is to the effect that he did not write the answers and did not know that they were being written. From the facts the jury...
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