Serv. Life Ins. Co. of Omaha, Neb., v. McCullough
| Citation | 13 N.W.2d 440,234 Iowa 817 |
| Decision Date | 06 May 1944 |
| Docket Number | No. 46400.,46400. |
| Parties | SERVICE LIFE INS. CO. OF OMAHA, NEB., v. McCULLOUGH. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Lucas County; Elmer K. Daugherty, Judge.
A suit in equity to cancel a contract of insurance, for breach of warranties, and for false and fraudulent representations, contained in an application by the insured for the reinstatement of the contract. The court denied this relief, and rendered judgment for the defendant for the full amount claimed under the contract. The judgment and decree is affirmed.George C. Stuart, of Chariton and Lloyd Dort, of Lincoln, Neb., for appellant.
W. W. Bullman, Leo A. Hoegh, and Virgil E. Meyer, all of Chariton, for appellee.
The facts and their chronology are important in the determination of the appeal. On July 1, 1937, Herman F. McCullough, a farmer, born October 2, 1889, made written application to plaintiff for a contract of insurance. At the same time, on a separate form, he made a declaration of insurability in lieu of a medical examination. The defendant testified that the insured had a medical examination, which was the privilege of plaintiff, but no report thereof was attached to the contract. There is no denial of defendant's testimony on this point. The policy or contract was issued on July 19, 1937. It was a convertible ten-year term policy, providing for the payment of $2,000 and all premiums paid, to the wife of insured, the defendant, on proper proof of the death of insured prior to July 17, 1947. The premium was payable quarterly in the sum of $9.48 on the 19th of July, October, January, and April. The insured failed to make the payment due July 19, 1939, within the grace period. On August 30, 1939, the plaintiff, by a form letter, notified insured of the suspension of the policy, and stated therein: “Complete the reinstatement form on the back of this letter and send it to us with the amount of your past due premium.” On December 4, 1939, the insured filled out the blanks on the printed form sent to him, and signed it before a witness, and sent it to the company, with the two payments in default. The material portions of this “application for reinstatement of policy”, and all of the questions and answers-the latter being in the handwriting of insured, and the other parts being printed-are as follows:
Exact Height and Weight
5 ft. 11 in. 170 lbs.
“1. What is your present occupation? Laborer
“2. Have you had any serious illness since your policy was issued? No.
If so, explain. A sprained ankle.
“3. What relatives have died since policy was issued? None.
Cause of death. __________
The answers to questions 2 and 6 are the only ones complained about by plaintiff. These answers the plaintiff pleaded and urged were made warranties by the last paragraph of the application.
The policy was reinstated on December 16, 1939, and a photostat of the application for reinstatement was sent to him by the company with instructions to attach it to the policy. The premiums were thereafter paid until the death of the insured.
The insured and his wife moved from the farm on which he was working into the village of Derby, Iowa, (population about 300) in the spring of 1938. There he conducted a little shop for the repair of windmills, pumps, machinery, etc. This work did not occupy all of his time, and he was engaged in W.P.A. work, and in 1940 and 1941 he was employed in a service station. On October 12, 1939, while doing some excavating in connection with W.P.A. bridge work, he sprained one of his ankles. The progress was slow in the improvement of the ankle, and on March 19, 1940 he was sent, at the expense of the Federal Government, to the United States Marine Hospital at St. Louis, Missouri, for further treatment of the ankle. The results were favorable, and on April 4, 1940 he was discharged from the hospital and returned home. By about the first of May following his ankle was so that he was again at work. There is no warrant for the intimation of the plaintiff that he received any treatment or examination other than for his ankle, although the defendant testified that sometime after his return he told her that a doctor at the hospital said he might have colitis.
In August, 1937, while working on the farm he had quite a severe attack of diarrhea, which lasted three or four days, although he kept on with his work. He attributed it to the eating of tomatoes or cucumbers. He went to Dr. Niblock at Derby to get medicine for the ailment. The Dr. testified that it was just ordinary diarrhea and lasted something like a day or two. He also testified that it was the first time he had treated McCullough for diarrhea, although he had been his family doctor for 30 years. In February, 1940, the insured had a light attack of flu, accompanied by loose bowels. No doctor treated him at that time. About Christmas, 1940, he had a severer attack of flu, accompanied by rather severe diarrhea-8 or 10 stools in 24 hours. Dr. Niblock attended him. He testified that then for the first time he suspected that McCullough might have colitis. But he said nothing to McCullough or the defendant about his suspicions. The defendant testified that after the diarrhea in August, 1937, her husband had no diarrhea of any kind until the two flu attacks in 1940. In May 1941, he installed a pump head on a windmill tower. Then, for the first time, was any trace of blood noted in his stools. At the service station he did heavy work handling tires and servicing motor vehicles. Oftentimes he would come to the station voluntarily, after supper, and work. The last work he did at the service station was on November 1, 1941. He went home at that time and became severely ill. During the latter days of his illness, his stools, containing blood and mucus, were as often as 28 times in a day. Dr. Niblock attended him. On November 17, 1941 he was taken in an ambulance to the University Hospital at Iowa City. He was in a stupor most of the way and in that condition when he reached the hospital at 4 o'clock P. M. A doctor examined him and took a history of the case from his wife. The patient died at 9:25 P. M. on November 18, 1941. The report of the post mortem showed a cirrhotic liver, idiopathic ulcerative colitis, and lobular pneumonia. The cause of death was given as toxemia due to the two first named conditions. The depositions of three doctors from the University Hospital were read by the plaintiff. These doctors were licensed to practice, respectively, in 1940, 1939, and 1938. The first doctor attended the patient while he was living. The second performed the autopsy. The third, who had no personal observation of the patient or the body, answered a hypothetical question. The history as taken by the first doctor was a summation in the words of the doctor of what he said the defendant told him. It was written from memory, at some time, as no notes were taken of what the defendant told him. Some errors may have inadvertently crept in because of this, as it is contradicted by other believable testimony. The doctor who performed the autopsy testified that there were a number of ulcers in the large colon. He described the ulcers as idiopathic, meaning that their origination and development were not clear, and were without recognizable cause, as of spontaneous origin. He said as a witness, “I would not undertake to say how long those ulcers had been there.” Dr. Yocum, of Chariton, testifying for plaintiff, said: “There is no way of knowing how long a time it would take to produce ulcers.” The testimony discloses that diarrhea may not be colitis, and it may have a number of causes. Also there may be diarrhea and colitis without ulcers.
The hypothetical question propounded to the third of the hospital doctors was unfair to the defendant and because of misstatements of fact therein, the answer that the ulcerative colitis was probably of five years' duration, is of little weight.
In addition to this testimony the plaintiff introduced in evidence defendant's proof of loss, containing her sworn statement and the sworn statement of Dr. Niblock, and the statement of Dr. Ide of Iowa City, that death was caused by toxemia due to ulcerative colitis and portal cirrhosis of the liver. In the two first-mentioned statements the cause of death was given as colitis suffered for about three years. The history of the patient compiled at the hospital, from purported information given by the defendant, stated that the insured had had intermittent diarrhea for five years. There was also testimony by the defendant that in 1941 where some edema of the lower limbs, and some blotches caused by bursting capillaries due to poor circulation. The edema was slight and the blotches passed away.
Opposed to the testimony of the plaintiff, in addition to that already noted, is the testimony of the defendant that her husband had had no diarrhea for almost three years after that of August, 1937; the testimony of eight lay witnesses who...
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