W. & S. Life Ins. Co. v. Ogrodnik

• Citation: 287 N.W. 454,290 Mich. 254
• Decision Date: 05 September 1939
• Docket Number: No. 123.,123.
• Parties: WESTERN & SOUTHERN LIFE INS. CO. v. OGRODNIK.
• Court: Michigan Supreme Court

290 Mich. 254

287 N.W. 454

WESTERN & SOUTHERN LIFE INS. CO.

v.OGRODNIK.

No. 123.

Supreme Court of Michigan.

Sept. 5, 1939.

Suit by the Western & Southern Life Insurance Company, an Ohio corporation, against Waleria Ogrodnik, special administratrix of the estate of John Ogrodnik, deceased, to cancel a policy of insurance which the plaintiff issued on the life of John Ogrodnik, deceased. From a decree of dismissal, the plaintiff appeals.

Reversed and decree for plaintiff ordered to be entered.

Appeal from Circuit Court, Wayne County, in Chancery; Allan Campbell, judge.

Argued before the Entire Bench.

Bodman, Longley, Bogle, Middleton & Farley, of Detroit, for appellant.

Berger, Manason & Barris, Arthur J. Rooks, and Isadore Berger, all of Detroit, for appellee.

POTTER, Justice.

Plaintiff filed a bill to cancel a policy of insurance which it issued on the life of John Ogrodnik, now deceased, upon the ground he made false and untrue statements in relation to material facts with the intent to deceive plaintiff in relation to his health and habits of life and medical history, tendering the amount of premiums which had been paid upon the policy to defendant, the special administratrix of deceased.

March 16, 1936, the policy of insurance was issued. John Ogrodnik died October 24, 1936. The application for insurance was made March 12, 1936, four days before the policy was issued. The policy was for the sum of $500. The insured had had a previous policy in plaintiff company which had lapsed and a new policy was issued.

Assured had been on relief, doing WPA work, and the doctor employed by the Wayne county relief commission as supervising physician produced the records of that department. Mary Fryling, a case worker with the Hamtramck welfare office, produced the records and files of that office which showed a statement signed by Dr. Skryzski under date of July 12, 1935, and a statement signed by Dr. Podezwa under date of November 1, 1935; a record under date of October 30, 1935, that the insured said he was being taken care of by Dr. Dan Gordon; that July 12, 1935, the insured was in the office for medical care of himself, and again on August 16, 1935, and again December 6, 1935, and again December 9, 1935, and again on January 7, 1936, and again on March 11, 1936, in each case for the purpose of procuring medical care for himself.

In his application, deceased stated he had had no illness, disease or injury in the past three years; that he had never had heart disease or lung disease, and was in sound health. While he made these statements on March 12, 1936, the records indicate the day before he made the application he was in the WPA office asking for medical care from public relief agencies.

The reports of the two physicians, that of Dr. Skryzski presented to the welfare office by the insured and the report of the physical examination of the insured by the WPA physician, together with the records of the welfare office as presented by Mary Fryling, were the basis of plaintiff's claim.

The report of Dr. Skryzski of June 12, 1935, indicated the insured had been receiving medical aid during the preceding two weeks for pleurisy. October 30, 1935, the insured furnished a statement signed by his own physician, Dr. Podezwa, dated November 1, 1935, showing insured had chronic myocarditis and cardiac decompensation and could not work. November 22, 1935, the insured, based upon the statement of Dr. Podezwa, was sent to the welfare physician who reported insured was unemployable. This testimony was not disputed.

In Dolinski v. John Hancock Mutual Life Ins. Co., 120 N.J.L. 271, 199 A. 394, 395, the facts leading up to the issuance of the policy sued upon were similar to this case. There was...