Zimmerman v. Bankers' Cas. Co.

• Decision Date: 07 December 1917
• Docket Number: No. 20588.,20588.
• Citation: 138 Minn. 442,165 N.W. 271
• Parties: ZIMMERMAN v. BANKERS' CASUALTY CO.
• Court: Minnesota Supreme Court

138 Minn. 442

165 N.W. 271

ZIMMERMAN

v.BANKERS' CASUALTY CO.

No. 20588.

Supreme Court of Minnesota.

Dec. 7, 1917.

Appeal from District Court, Hennepin County; William C. Leary, Judge.

Action by Fred Zimmerman against the Bankers' Casualty Company. Verdict for plaintiff, and from an order denying its motion for judgment notwithstanding the verdict or a new trial, defendant appeals. Affirmed.

Syllabus by the Court

Where the agent of an insurance company, authorized to procure applications and forward them to the company, makes out an application incorrectly, notwithstanding that all the facts are correctly stated to him by the applicant, the error is chargeable to the insurer, and not the insured, and such statement will not have the effect of avoiding the policy.

The claim that the insured did not comply with the provisions of the policy, in regard to notifying the company of his condition, is sufficiently disposed of by the admission of counsel upon the trial. Lancaster, Simpson & Purdy and James E. Dorsey, all of Minneapolis, for appellant.

John R. Coan, of Minneapolis, for respondent.

QUINN, J.

Action to recover upon an accident and health insurance policy issued by the defendant to plaintiff, insuring him against the effects of bodily injury sustained and disability resulting from illness contracted during the life of such policy. Plaintiff had a verdict for $679.80, and from an order denying its motion for judgment notwithstanding the verdict or a new trial defendant appealed.

The policy was issued on November 16, 1915, based upon an application signed by the plaintiff on November 10, 1915. The application contained numerous questions designed to furnish the company with information relative to the applicant's condition of health, occupation, and habits of life, as a guide in determining whether a policy should issue to him. The questions contained therein were propounded to the plaintiff by the agent of the defendant, and the answers written in by her. It is contended that the answers given to questions Nos. 9 and 10 were not true. These questions and the answers thereto appear in the application as follows:

‘9. Have you ever had * * * hernia * * *? State fully. No.

‘10. Have you had medical or surgical treatment during the past five years? State full particulars and give name and address of attending physician. Rupture 4 years ago. Dr. Corbett, Mpls., Minn. Successful operation performed.’

The plaintiff had sustained a hernia caused by lifting, and was operated on by Dr. Corbett in 1911. Thereafter the hernia reappeared, due to a fall, and he wore a truss for a considerable time. In the spring of 1914, he was operated on for the same trouble by Dr. Dunsmoor, and was confined to the hospital for some weeks. In January, 1916, he slipped and fell while shoveling snow, and was carried home. The family physician diagnosed his trouble as tonsilitis, which developed into quinsy, accompanied by rheumatic pains which finally became sciatic neuritis. He was confined to his home until February 19th when the hernia trouble again appeared, and he was taken to a hospital and operated on. He remained in the hospital until May 15th, when he was removed to his home. During his illness several written reports of his condition were furnished the defendant company, and every four or five days it was otherwise informed of his condition.

Plaintiff's disability arising out of his fall while shoveling snow commenced about two months after the policy was issued, and lasted for six months, which was the maximum period under the policy for which the company was liable. The company refused to pay his claim, because of his alleged failure to have inserted in the application mention of the operation performed on him by Dr. Dunsmoor, and because of his failure to make the required report of his condition during his illness. Defendant insists that the failure to mention the Dunsmoor operation in answer to question No. 10 in the application was a concealment of a material fact, made with intent to deceive and defraud, and affected the risk of loss so as to defeat the policy. Section 3300, G. S. 1913, reads:

‘No oral or written misrepresentation made by the assured, or in his behalf, in the negotiation of insurance, shall be deemed material, or defeat or avoid the policy, or prevent its attachment, unless made with...