Thompson v. New York Life Ins. Co.

• Decision Date: 25 June 1940
• Citation: 197 So. 111,143 Fla. 534
• Parties: THOMPSON et al. v. NEW YORK LIFE INS. CO.
• Court: Florida Supreme Court

197 So. 111

143 Fla. 534

THOMPSON et al. v. NEW YORK LIFE INS. CO.

Florida Supreme Court

June 25, 1940

En Banc.

Certiorari to Circuit Court, Duval County; A. D. McNeill, Judge.

Suit by Maude Thompson, joined by her husband, Jeff B. Thompson against the New York Life Insurance Company, on a life policy. To review a judgment of the circuit court reversing the judgment of the Civil Court of Record and adjudging as a matter of law that plaintiffs were not entitled to recover judgment, the plaintiffs bring certiorari.

Writ denied.

WHITFIELD and CHAPMAN, JJ., dissenting.

COUNSEL

Evan T. Evans, of Jacksonville, for appellant.

Charles Cook Howell and Charles Cook Howell, Jr., both of Jacksonville, for appellee.

OPINION

BUFORD Justice.

This case is before us on certiorari granted to a judgment of the Circuit Court of Duval County reversing the judgment of the Civil Court of Record and adjudging as a matter of law that the plaintiff in the Court below was not entitled to recover judgment.

The suit was on an insurance policy. The death of the insured occurred within two years after the issuance of the policy. The application for the policy was made a part thereof and the policy was issued in consideration of the application and the premium paid for the same. The application for the policy was dated November 15, 1934, and contained the following questions:

'8. Have you ever consulted a physician or practitioner for or suffered from any ailment or disease of

'(a) the brain or nervous system?

'(b) The heart, blood vessels or Lungs?

'(c) The Stomach or Intestines, Liver, Kidneys or Bladder?

'(d) The Skin, Middle Ear or Eyes?

'9. Have your ever had rheumatism, Gout or Syphilis?

'10. Have you ever consulted a physician or practitioner for any ailment or disease not included in your above answers?

'11. What physicians, or practitioners, if any, not named above have you consulted or been examined or treated by within the past five years?'

Questions 8, 9 and 10 were each answered 'No' by the applicant. Question 11 was answered 'None'.

The application also contained the following stipulation:

'On behalf of myself and of every person who shall have or claim any interest in any insurance made hereunder, I declare that I have carefully read each and all of the above answers, that they are each written as made by me, and that each of them is full, complete and true, and agree that the Company believing them to be true shall rely and act upon them. I expressly waive on behalf of myself and of any person who shall have or claim any interest in any policy issued hereunder, all provisions of law forbidding any physician or other person who has heretofore attended or examined me, or who may hereafter attend or examine me, from disclosing any knowledge or information which he thereby acquired.'

The pleas of the defendant insurer alleged that the answers to questions 10 and 11 were false and untrue and were known to be false and untrue at the time the application was signed. The pleas alleged in detail the facts relied upon to show that the said answers were false and untrue.

The record shows that on May 1, 1936, the insured underwent a surgical operation for the removal of her right ovary and right fallopian tube and that on May 7, 1936, before recovering from said operation she died from intestinal obstruction and circulatory collapse, which in common language means obstruction of the bowel and stoppage of circulation of the blood.

On trial a verdict and judgment was entered for the plaintiff.

Motior for new trial was denied. Writ of error was taken and the Circuit Court reversed the judgment on the ground that the motion for new trial should have been granted on grounds 3, 4, 5 and 6 of said motion for new trial, which grounds are as follows:

'3. The verdict is not supported by the evidence.

'4. The verdict is contrary to the greater weight of the evidence.

'5. There is difficulty in reconciling the verdict with the right and justice of the case.

'6. The Court erred in refusing to direct the jury to find a verdict for the Defendant.'

The undisputed facts are that the insured had been examined and treated by a physician on numerous occasions within five years prior to her application. An analysis of her true medical history when she applied for the insurance, as shown by the record, was:

[Note: The following TABLE/FORM is too wide to be displayed on one screen. You must print it for a meaningful review of its contents. The table has been divided into multiple pieces with each piece containing information to help you assemble a printout of the table. The information for each piece includes: (1) a three line message preceding the tabular data showing by line # and character # the position of the upper left-hand corner of the piece and the position of the piece within the entire table; and (2) a numeric scale following the tabular data displaying the character positions.]

******** This is piece 1. -- It begins at character 1 of table line 1. ********

Dates Doctor Ailment

January 2nd, Robt. D. May Influenza

9th, 17th, 19th (Upon all Occasions)

21st, 23rd, 26th

29th, 1932

Feb. 2nd, Influenza

5th, 8th, 16th

1929

May 10th, 17th, Scanty menstruation,

and 15th, 27th, and irregularity.

1929.

July 5th, 1929. Scanty menstruation.

Right ovary size

of lemon, right

Fallopian tube

unknown

December 11,

13, 16, 23,

31, 1929.

March, 1930 Scanty menstruation.

Right ovary size

of lemon, now

April, 1930 cystic.

September 2, 3,

4th, 1931. Wart

March 8, 9, 11, Secondary anaemia.

14, 16, 18, 22, Profuse

24, 26, 28, menstruation.

30, 1932.

April, 1932. Same condition.

1...k...10....k...20....k...30....k...40....k...50....k...60..

******* This is piece 2. -- It begins at character 63 of table line 1. ********

Treatment Comments

Tincture nux House visits

vomica,

glycerine

Tincture gentian

compound

Syrup Europhoria

Compound

Confined to bed Vaccine therapy

cough mixtures, administered in

mustard plasters, a series of 3-5.

Tonic vaccine Injected

therapy. hypodermicallly.

Glandular Administered by

therapy. tablet through

mouth to stimulate

action of

ovaries.

A series of

vaccines.

Glandular Ovary contains

therapy.

Removed electrically.

Confined to bed Profuse

ice bags, sedative menstruation

Calcium lactate, is known

glandular tablets medically as

Armour's liver "Menorrhagia"

Extract.

63....70....k...80....k...90....k....0....

The record shows conclusively that the condition which necessitated the operation was directly connected with the conditions which the physician found present and treated the applicant for on July 5, 1929, and on March 30, 1929, and were related to and connected with the condition which required treatment in March and April of 1932.

The right ovary and Fallopian tube which were affected in 1929 and 1930 and 1932 were the same that required the performance of the operation in 1936.

The question before us here is not, however, what effect the infirmities existing when the applicant was treated by a physician in 1929, 1930, 1931 and 1932, may have had in connection with the death of the insured.

As stated by Circuit Judge Taft in Penn. Mutual Life Insurance Co. v. Mechanics' Savings Bank and T. Co., 6 Cir., 72 F. 413, 428, 38 L.R.A. 33, cited with approval in Jefferson Standard Life Insurance Co. v. Clemmer, 4 Cir., 1935, 79 F.2d 724, 733, 103 A.L.R. 171, 'Materiality of a fact, in insurance law, is subjective. It concerns rather the impression which the fact claimed to be material would reasonably and naturally convey to the insurer's mind before the event, and at the time the insurance is effected, than the subsequent actual causal connection between the fact, or the probable cause it evidences, and the event.' See also Hurt et al. v. New York Life Insurance Co., D. C., 41 F.2d 392, 393, Empire Life Insurance Co. v. Jones, 14 Ga.App. 647, 82 S.E. 62; Lee v. Metropolitan Life Insurance Co., 158 Ga. 517, 123 S.E. 737; National Life & Accident Insurance Co. v. American Trust Company, 17 Tenn.App. 516, 68 S.W.2d 971.

The Chief Medical Director who approved the insured's application testified in effect that had he known her real medical history, he would have rejected her application and he also testified that reputable insurance companies generally would have done so.

In Hermann v. Court of Honor, 193 Ill.App. 366, the proof showed that about three years prior to the issuance of the policy the insured had 'had a serious disorder of the ovaries and fallopian tubes' for the correction of which it became necessary to take her to the hospital and to remove said organs by a 'major surgical operation.' The application did not reveal the existence of any of these disorders, but denied them. The court in reversing the judgment in favor of the beneficiary said:

'These statements were made warranties by the language of the application, but even if they had been representations only, they were material to the risk and their untruth made the certificate viod from the first.'

In Mutual Life Insurance Co. of New York v. Denton, 93 Fla. 276, 112 So. 53, we held:

'In an action upon a life insurance policy, a plea that the insured in his application for the policy made an untrue representation that he had never made an application nor submitted to an examination for...