Winer v. New York Life Ins. Co.
| Decision Date | 12 July 1940 |
| Citation | 143 Fla. 652,197 So. 487 |
| Parties | WINER v. NEW YORK LIFE INS. CO. |
| Court | Florida Supreme Court |
Rehearing Denied Aug. 2, 1940.
En Banc.
Suit by the New York Life Insurance Company against Sara Winer, a widow, to cancel a reinstated life insurance policy after the death of the insured. From an adverse decree, defendant appeals.
Affirmed.
WHITFIELD P.J., and CHAPMAN, J., dissenting. Appeal from Circuit Court, Dade County; Paul O. Barns, Judge.
Rosenhouse & Rosenhouse, of Miami, for appellant.
Shutts & Bowen and E. S. Quick, all of Miami, for appellee.
This case is before us on an appeal from a final decree of the Circuit Court for Dade County. The bill of complaint sought cancellation of a reinstated life insurance policy after the death of the insured on the ground of false representations made in the application for reinstatement, the falsity of which did not come to the insurer's knowledge until after insured's death. The policy was issued November 4, 1931 and contained a clause to the effect that it would be incontestable after two years from date of issue; it lapsed for non-payment of premium July 26, 1933, and was reinstated on application made October 2, 1933. Insured died June 24 1935. The beneficiary was notified of the insurer's election to rescind on July 26, 1935. The bill of complaint was filed September 19, 1935.
It is not necessary to again set out here the questions involved on the former appeal. The original opinion therein is reported in 130 Fla. 115, 177 So. 224, and the opinion on rehearing appears in 138 Fla. 818, 190 So. 894.
This second appeal is from the final decree on pleadings and proof, and all interlocutory orders. The appellant in this case is Sara Winer, a widow, who was made the beneficiary in a life insurance policy issued to Edward Winer, her deceased husband, on November 4, 1931. The insured failed to pay the quarterly premium due on said policy on July 26, 1933, and it lapsed. This suit was brought by the appellee insurance company to have the policy cancelled and the appellants enjoined from enforcing it on the ground that in the application to reinstate the policy the insured answered falsely two questions. The premiums that had been paid on the policy were tendered into court be the insurer to be returned to the defendant under order of the court.
In order to induce the insurer to reinstate the policy, the insured (on one of the company's applications to reinstate) stated to the company in writing duly signed by him as follows:
A special master, Hon. Norris McElya, was appointed to hear the evidence and report same together with his findings of fact and conclusions of law to the court.
Mr. Edwards, agent for the insurance company, testified that he read these questions to the insured, Mr. Winer, and wrote out the answers as given by Mr. Winer, and that Mr. Winer then signed the application for reinstatement. The agent also said that he had conversed with Winer from time to time and that Winer spoke the English language; that he, the agent, did not know that Mr. Winer had had any illnesses or injuries of any sort; that the insured knew that the policy had lapsed and that he was applying for its reinstatement.
The testimony further showed that the insured on April 3, 1933, after a continuous nose bleeding for twelve hours, visited and consulted Dr. M. H. Tallman and Dr. M. P. DeBoe, licensed and practicing physicians in Miami, Florida. Dr. Tallman testified at the hearing before the master in the court below that when Mr. Winer, the insured visited his office on April 3, 1933, the insured was suffering from 'cardio-vascular renal disease of the hypertensive type, which means that he had a generalized arteriosclerosis and that it affected his heart, blood vessels and kidneys, and that his blood pressure was elevated, both the systolic and diastolic'; that his disease was serious, 'usually progressive, and in the malignant type, such as he had, death usually ensues within a few years'; that he advised insured that he would have to go upon a very strict regim£ if he expected to have any improvement in his condition, and on this first visit he prescribed a milk diet without other foods or liquids; that insured called again on April 7, 1933, and the diet solely of milk was continued; that when insured called on April 14, 1933, he prescribed a change from the milk diet to a raw food diet. Dr. Tallman further testified that the changes in insured's condition during this twelve-day treatment indicated to him that insured's condition was chronic; that although he did not discharge the case, the insured did not call again at his office until April 30, 1935; that he treated the insured during his last illness; that the disease from which insured died was a continuation of the same disease from which he was suffering when he first called for treatment on April 3, 1933; that during the twelve-day treatment in 1933 the insured's condition improved, but he never recovered to a point where you could say he was a well man again.
The testimony further showed that Dr. Tallman on April 3, 1933, also referred insured to Dr. M. P. DeBoe for treatment for the nose hemorrhage. Dr. DeBoe testified that insured came to him for treatment on that date and that he treated him for the hemorrhage; that the hemorrhage was due to a systemic condition, and was not due to any injury; that there had been a spontaneous rupture of a blood vessel, which in his opinion was caused by high blood pressure or deterioration of the blood vessels, or both.
It should be stated, however, that the testimony does not affirmatively show that the physicians acquainted the insured with his then condition other than the natural inferences that any one, however uneducated, would draw from the drastic treatment prescribed.
The testimony of the Miami agent and the home officials of the appellee company tends to show that it is the policy of the company to rely on positive answers to the representations which were found on insured's application for reinstatement, and that it was their policy to require a thorough medical examination where the answers were not satisfactory or where they had reason to believe that insured was not in good health, and that, therefore, they did rely on the representations in this case.
Witnesses for the appellant were Mrs. Sara Winer, appellant; Abraham Winer, her son; and M. H. Rosenhouse, attorney for the insured. They testified that the insured could not read or write the English language, but could sign his name, and that he did not handle his business transactions, but that they were handled by his son and his attorney. Mr. Rosenhouse testified that Mr. Winer could carry on an ordinary conversation in English very well, provided it did not involve any intricate business matters. It also appears that the insured had been in the real estate business. The fair inference from the testimony as a whole is that Mr. Winer could understand and speak English, and understood the questions in the application which he signed.
Appellant testified that in April, 1933, insured went to Dr. M. H. Tallman with a 'nose-bleed,' and that Dr. Tallman put him on a milk diet just for a day; that he wasn't sick and did not know he was suffering from heart trouble.
Although the master's report of findings states that it does not positively appear from the testimony that when insured made application for reinstatement of his policy that he was not to the best of his information and belief in the same condition of health as when the said policy was issued to him, or that he knew of any diseases or bodily injuries incurred or had within two years prior to the said application, the report does state that the testimony disclosed that the insured had within two years of making the application for reinstatement of his policy consulted and been treated by two physicians and that if he had disclosed this fact to the insurance company a further investigation would have been made, and that the reinstatement would rpobably have been refused; that, therefore, he is of the opinion that the relief prayed for in the bill of complaint should be granted.
The appellant excepted to the master's report, but the court in the final decree overruled the exceptions, confirmed, and in all respects approved, the master's report and cancelled the policy.
The appellant contends that the appellee company is not entitled to rescind the reinstatement, unless it affirmatively appears that the insured formed a conscious intention to deceive the insurer, and also that it does not affirmatively appear that the insured acted in bad faith. This court laid down the rule in New York Life Ins. Co. v Kincaid, 122...
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