261 N.W. 580 | Minn. | 1935
It was Hog's duty to give truthful answers to the questions relative to medical attention and treatment. "They were material to the risk and, if false, the policy may be avoided," unless the consultation or treatment not disclosed was for a slight or temporary ailment. Shaughnessy v. New York L. Ins. Co.
"Have you sought professional advice as to your health or have you been treated within the last five years? If so, by whom and for what ailment?"
To which he answered "Yes." As to details, he gave the name of Dr. Kesting and described the illness as follows:
"August, 1932 — Indigestion from overeating two heavy meals. Results — Well — Lasted two days — no pain — just nausea — Vomiting one night."
In reply to the question inquiring if he had ever been in a hospital for treatment, observation, or diagnosis and, if so, to give the dates, duration of stay, name of ailment, and name of institution, he answered "No." At the bottom of this statement to the medical examiner and over Hog's signature was the statement that his answers to the questions "are complete and true and shall be the basis of the policy or contract hereby applied for." Quite obviously the answers to these questions were not complete or true; and, unless the ailments which he failed to report were trivial or temporary and with so little bearing upon the acceptance of the hazard as to be negligible, the policy may be avoided on that account. *35
The appellant contends that an incomplete answer is not a false answer and cites the case of Rupert v. Supreme Court U. O. of F.
The burden was upon the defendant to show the falsity of the answers, Chambers v. N.W. Mut. L. Ins. Co.
Therefore, even if the cardiogram was privileged and so inadmissible (a question we do not decide), the record is conclusive that plaintiff failed to support the burden cast upon it and to show that the answers were false only as to matters of negligible importance. It successfully kept from the court all information on that subject, *36 and there was nothing to go to the jury. In the light of the concededly proper interpretation of the cardiogram, any attempt in that direction would have been fatal to plaintiff's case.
We come then to the question of the insured's intent to deceive, and here again we think the trial court was right in interpreting the record as conclusive of the presence of such wilful deceit. The illness was recent, it was serious enough to call for a number of professional visits. On one day there were three such visits by Dr. Pollock, followed a few days later by the visit to the hospital for diagnosis by the cardiograph. That the insured still had this in mind at the time the application was made is shown by the undisputed testimony of the insured's partner, who discussed it with him the very day of the examination. Reasonable minds could not judicially arrive at any other conclusion than that of the trial court. Any other would be a reflection upon the administration of justice. Consequently, as said by the trial court, the question whether the Wisconsin or the Minnesota statute applies is not important. Under either the plaintiff may not recover.
Order affirmed.