Security Life Ins. Co. v. Brimmer

• Decision Date: 14 November 1929
• Docket Number: No. 8479.,8479.
• Parties: SECURITY LIFE INS. CO. OF AMERICA v. BRIMMER.
• Court: U.S. Court of Appeals — Eighth Circuit

36 F.2d 176 (1929)

SECURITY LIFE INS. CO. OF AMERICA v. BRIMMER.^*

No. 8479.

Circuit Court of Appeals, Eighth Circuit.

November 14, 1929.

Arthur S. Lytton, of Chicago, Ill. (Follett W. Bull and Olaf A. Olson, both of Chicago, Ill., D. S. Lamm, of Sedalia, Mo., and James C. Jones, Jr., of St. Louis, Mo., on the brief), for appellant.

Lawrence Barnett, of Sedalia, Mo. (Frank Hayes, of Sedalia, Mo., on the brief), for appellee.

Before VAN VALKENBURGH and GARDNER, Circuit Judges, and WOOD-ROUGH, District Judge.

GARDNER, Circuit Judge.

This is an action to recover on a policy of life insurance written by the defendant insurance company upon the life of Dr. Omar W. Clabaugh. The policy was written January 21. 1927.

On February 13, 1928, the insured died of a heart impairment known to the medical profession as coronary occlusion, or stoppage of a blood vessel which supplies the heart muscles. The occlusion or stoppage was caused by an embolus or thrombus; an embolus being a blood clot traveling through the blood stream, and a thrombus being a blood clot affixed to the wall of the blood vessel.

The answer set up as an affirmative defense that the insured made certain misrepresentations in his written application for insurance, in that in his application he gave false answers to certain questions contained therein, and that these false answers were known to him to be false and were fraudulently made to induce the issuance of the policy; that the matters misrepresented actually contributed to the insured's death; that defendant company did not know or learn of the falsity of these statements and representations until after the death of the insured.

In support of this defense the insurance company offered evidence to show the previous medical history of the insured and the cause of his death, and also to show by such history that the representations made by the insured in his application for insurance were materially false, and that such representations were relied upon by the insurance company. These representations in the application, by the terms of the policy, became a part of the policy. The substance of the representations so made, which are now claimed to have been false, are as follows: (1) Insured represented that he had never received treatment in any hospital, sanitarium, or asylum; (2) that he had never had any disorder of the brain or nervous system such as apoplexy, insanity, fits, sunstroke, nervous breakdown, etc.; (3) that he had never had any disorder of the heart or blood vessels such as palpitation, valvular diseases, endocarditis, fainting spells, piles, varicose veins, etc.; (4) that he had never had any disorder of the respiratory system such as pleurisy, pneumonia, asthma, bronchitis, chronic cough, tuberculosis, spitting blood, etc.; (5) that he had never had general diseases such as rheumatism, syphilis, diabetes, enlarged glands, goitre, cancer, growths, or tumors, etc.; (6) that he had never had any disease of the joints, bones, or spine; (7) that he had not within seven years prior to the date of the application consulted any physician not previously mentioned; (8) that to the best of his knowledge and belief he was in good health.

It appears from the evidence that in the spring of 1924 the insured was afflicted with an infection of the skin and was attended by physicians in the Christian Hospital at Kansas City. At that time one of the attending physicians observed that the insured had some arthritis of the spine, that his heart was somewhat enlarged, that his blood pressure was somewhat high, and that there was some evidence of asthma. The treatment at that time continued over a period of some three weeks, and during the following year the insured told his attending physician that he had had asthmatic attacks, and the physician observed an asthmatic condition, and, at that time, the physician thought the insured had myocarditis and because thereof the physician instructed the insured to be careful or he would have trouble therefrom.

Another physician produced as a witness by the defendant testified that he had found the insured's blood pressure above normal, found an asthmatic condition which he diagnosed as cardiac asthma due to an impairment of the heart, and that he had so informed the insured. In 1924 the insured, who was himself a practicing physician, asked this physician to go over his heart, blood pressure, and chest, and on doing so the physician found that the insured had a blood pressure of above 170, cardiac asthma, and a hypertrophied heart (an enlarged heart); the enlargement being about three quarters of an inch. The physician discussed with the insured his condition and cautioned him to be careful and not to overdo.

It also appears from the testimony that the insured had made claims under health insurance policies on account of rheumatism. Other testimony along the same lines was introduced by the defendant tending to show that at times prior to the making of the application for insurance the insured had various ailments, and particularly ailments which affected his heart. There was some modification of certain of this testimony brought out on cross-examination, and there was some doubt as to whether the asthma was heart asthma or bronchial asthma. The attending physician testifying for defendant as to the enlarged heart, on cross-examination, said: It was such a condition as comes on once in a while from just a little let down in a man's health — nothing great. That the insured's condition was the thing we all have when we start to slip a little with our heart, kidneys, fatigue and shortness of breath, just a letting down.

There was other evidence with reference to the condition of the insured's health from time to time, and with reference to his having consulted with physicians, prior to the taking out of this insurance, but, in the view we take of the case, this is not of the utmost importance. It appears that after the dates on which, it is claimed, the evidence shows the insured consulted physicians who found him suffering from the ailments enumerated, and before he made his application for the policy written by the defendant, he was examined for insurance on March 21, 1925, on March 27, 1925, and on May 5, 1925, by Dr. A. E. Monroe, and upon these examinations was found to be a normal man. These examinations, made nearly two years before the application now under consideration was made, were in addition to the examination made by Dr. Ferguson, upon which the policy in suit was issued. In all, there were four examinations of the insured's condition by competent physicians, and on none of these examinations was insured's condition found to be other than normal. There was evidence by those knowing the insured intimately that he generally appeared healthy; that he had a rosy, pink, healthy looking complexion; was vigorous, active, and energetic until stricken with the malady which in four days resulted in his death. There was much other testimony introduced by the plaintiff tending to prove that whatever may have been the insured's condition in 1923 and 1924, when the physicians examined him, it had been cured or abated and was not present at the time application for the policy involved in this case was made, nor, so far as medical testimony and appearances indicate, for some considerable period preceding his death.

The defendant's medical witnesses admitted on cross-examination that, if the insured had had the heart trouble claimed, he would ordinarily have become pale and weak as he approached later stages of the disease. No doctor claimed to know all of the causes of coronary occlusion, but a great many of the causes were suggested by the medical witnesses. The testimony of course showed that the defendant's own physician examined the insured to determine his condition, and that this examination revealed no impairment or disease of the heart; that his blood and blood pressure were tested and found normal, and that his general appearance was healthy.

It is claimed by the defendant that it appears from the undisputed evidence that the answers made by the insured to the questions contained in the application for the insurance policy were false; that they were relied upon by the insurance company, and that the...