Torbensen v. Family Life Ins. Co.
| Decision Date | 10 September 1958 |
| Citation | 329 P.2d 596,163 Cal.App.2d 401 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Margaret TORBENSEN, Plaintiff and Appellant, v. FAMILY LIFE INSURANCE COMPANY, a corporation, and Walter R. Kitt Defendants, Family Life Insurance Company, a corporation, Respondent. Civ. 9325. |
Bradford, Cross, Dahl & Hefner, Sacramento, for appellant.
Devlin, Diepenbrock & Wulff, Sacramento, for respondent.
This action was brought to recover on a contract of insurance on the life of William P. Torbensen. The insurer, Family Life Insurance Company, refused to pay the amount of the policy upon the ground that the deceased made incomplete and untrue statements in the application for the policy. The trial court denied recovery except for the premiums paid, and this appeal followed.
The facts, viewed in the light most favorable to the respondent insurer, discloses that on April 26, 1955, the insurer issued its policy of life insurance on the life of the decedent, William P. Torbensen. On August 20, 1955, the insured died of cancer. All premiums accrued to the date of death were paid. Margaret Torbensen, appellant herein, gave the insurer the required proof of death and demanded payment. The insurer refused payment on the ground that false statements were made to the examining physician in the application for insurance. At the time the deceased submitted to the physical examination required by the insurer he was asked, among other questions, whether he was in good health and free from bodily impairment, to which he answered yes; whether he had consulted a physician in the past five years, to which the answer was that he had consulted a Dr. Wiseman for low blood pressure; whether or not he had ever had heart disease, to which the answer was no; and whether or not he had ever had an electrocardiogram taken, to which the decedent answered no. At the bottom of the questionnaire above the deceased's signature appeared the following:
To Whom it May concern:
'I hereby authorize and request you to disclose any and all information and records concerning my condition when under observation by you, if requested to do so by Family Life Insurance Company * * *.'
At the time the application was prepared the deceased was under the care of Dr. John Craig for an ailment which Dr. Craig had diagnosed as a heart condition. Dr. Craig testified that he had informed the deceased of his condition and had the deceased submit to an electrocardiogram and had prescribed during his course of treatment drugs which are used to relieve pain in heart disease.
Dr. Wiseman was contacted by the insurer and upon receipt of his reply the policy was issued as of the date of the application. The insurer did not know of any other doctors who had treated the insured but evidence disclosed that if the names of any other doctors had been known the insurer would have contacted them and made a more complete investigation; that the insurer would not have issued a policy if it had known of Dr. Craig's diagnosis, irrespective of its correctness.
The trial court found that the false and incomplete answers of the decedent were made with intent to deceive the insurer; that the insurer relied on the representations made; that if the true facts had been known they would have probably and reasonably influenced the insurer in its determination of whether or not it should issue the policy; and that if the true facts had been known the insurer would not have issued the policy. Judgment was entered in favor of the insurer.
Appellant's first contention is that the testimony of Dr. Craig and another physician who treated the deceased should have been excluded. Section 1881, subd. 4 of the Code of Civil Procedure provides in part that a licensed physician cannot, without the consent of the patient, be examined in a civil action as to any information acquired in attending the patient which...
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...(Ins.Code, § 334.) The misrepresentation need not relate to the loss ultimately claimed by the insured. (Torbensen v. Family Life Ins. Co. (1958) 163 Cal.App.2d 401, 405, 329 P.2d 596.) The test for materiality is whether the information would have caused the underwriter to reject the appli......
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