247 N.W. 576 | Minn. | 1933
Lead Opinion
Eugenia H. Hafner was the foster daughter of the plaintiffs. The Hafners had carried a number of small life insurance policies upon various members of their family in the defendant company, and amongst others there were several policies aggregating approximately $1,000 upon the life of Eugenia. She became 16 years of age on the 14th day of August, 1930, and on January 22, 1931, Schmitz, an agent of the defendant, who was evidently aware that Eugenia had then attained an age which would make her eligible for a larger and perhaps more desirable policy, took her application for the policy here sued upon. It was apparently a standard form of life insurance policy with an annual premium of $17.46. On account of the small size of the policy no medical examination was required by the defendant, but it was issued upon the medical history made out by the agent and signed by Eugenia. She died on the second day of June, 1931, of chronic Bright's disease, from which she had been suffering for some years. In 1926 she had been hospitalized for that trouble, and the week before she made the application for the insurance here involved she had been with her foster father to the Mayo clinic at Rochester and had been there examined. Both she and her father were well aware that she was afflicted with kidney trouble, but there is no evidence in the record that they were aware that the disease was likely to be fatal.
The principal controversy here arises over what took place at the time Schmitz took the application for the insurance and the legal effect of Eugenia's application under the facts as most favorably viewed from respondents' standpoint. In the written application signed by Eugenia it was represented that she had no physical or mental defect or infirmity; that her weight had not changed in the previous year; that she had had no serious illness and no medical or surgical treatment in a hospital for any such illness; *483 that she was at the time of making the application in good health and had not been attended by a physician during the three years previous to the application; and, specifically, that she had had no disease of the kidneys. These representations were of course false and material to the risk. The defendant tendered back the annual premium which had been paid and upon the trial moved for a directed verdict in favor of the plaintiffs in the amount of such premium. The motion was denied.
1. Schmitz testified that he either read or stated the contents of the questions in the application to Eugenia, that she responded in the negative, and that he so recorded her answers. He said that these questions were asked of her in the presence of her foster father, Mathias Hafner; but Hafner says that in his presence no questions were asked of Eugenia but that Schmitz obtained the answers by consulting a note book which he had with him and which presumably contained information obtained from policies previously taken out. Hafner was waiting on customers in his store and was momentarily away from Schmitz and Eugenia while so doing. It was quite possible, according to his testimony, that the questions might have been asked in his absence, and consequently the defendant claims that Schmitz' testimony must be taken as conclusive upon the theory that it is undisputed and unimpeached. We do not so regard the situation. Schmitz was positive that the questions were asked and the answers given in the presence of Hafner, who stood close by during the alleged interrogation. Hafner positively denies this, and we think that Schmitz' testimony was so far contradicted by that of Hafner that the jury might be justified in rejecting his story of the transaction and that it became a question of fact whether the questions were actually asked and answered or whether Schmitz made out the application and filled in the answers without making the inquiry of Eugenia and had her sign the application without reading it to her or otherwise informing her of its contents. That being the case, we must treat the record here upon respondents' theory that Eugenia signed a document the contents of which were unknown to her. *484
2. Upon this view of the evidence the defendant relies upon Shaughnessy v. New York L. Ins. Co.
"The statements made in the application as to the age,, physical condition, and family history of the insured shall be valid and binding upon the company, unless wilfully false or intentionally misleading."
It is claimed by the defendant that § 3396 does not apply to ordinary standard life insurance policies but only to so-called industrial insurance. It cites McAlpine v. Fidelity Cas. Co.
The defendant took two exceptions to the court's charge. The first paragraph complained of charged that if either Hafner or his daughter supplied the answers in the medical history "the answers, if given, to Schmitz and correctly recorded by him inthe application were given with the intent to deceive and defraud" and, if made, defeated the policy. The part of the charge complained of is that italicized. We see no prejudice to the defendant in this language. Obviously the court was merely endeavoring to characterize the answers and to tell the jury that if the recorded answers were the answers given by the applicant they avoided the policy.
The second exception to the charge is disposed of by our discussion of the law as applicable to the merits of the case.
The order of the trial court is affirmed.
Concurrence Opinion
This decision, with that in Enge v. John Hancock Mut. L. Ins. Co.
All that notwithstanding, I concur in the result in deference to the views of my associates and upon the authority of the decision of the Enge case, questionable as its reasoning seems to me, for reasons stated at the time.