This action was brought against the Reserve Life Insurance Company by plaintiff -claiming indemnity for hospital and surgical expenses. Plaintiff had a verdict for $734 and defendant appeals from the judgment rendered thereon.
Defendant denied liability in its answer alleging that plaintiff made certain false and fraudulent statements in *298 his application, for tlhie insurance upon which the defendant had relied and that if his answers to questions in the application had been truthful the policy would not have been issued. George Goetz, an agent represientating the defendant 'company, solicited plaintiff for the sale of a policy. On January 26, 1956, plaintiff signed ¡an application which includes the folio wing questions and answers:
“6. Are you and all оther members of the Family Group to be insured now in good health and free from any physical or mental defect? Yes
“8. Have you, any member of thе Family Group to be insured, ever had any disease of the heart, lungs, kidneys, stomach, or bladder; or high blood preasure, paralysis, arthritis, syphilis, Cancеr, diabetes, hernia, goitre, or rectal disease? No. * *
“9. Have you, or any member of the Family Group to be insured, received medical or surgical advice or treatment within the past three years? No.”
Defendant company accepted the application and issued to plaintiff a policy without a medical examination. Plaintiff testified that in 1936 he consulted a physician. The doctor informed him that be had a duodenal ulcer and prescribed the taking ¡of Sippy powders. Because of this ailment, plaintiff was1 discharged from the army in September, 1943. About a yеar later, corrective surgery for the duodenal ulcer was performed. Plaintiff further testified that in the fall of 1953 he went to see a doctor whо gave Mm “some tablets laying on bis desk some agent had left” and told him “to take them try thew and he said if they do you any good you can buy them down here” аt the drug store. On cross-examination, plaintiff testified:
“Q. Actually, Mr. Ivory, you have told us that you had an ulcer condition since 1936, is that correct? A. That’s right.
*299 “Q. And you’ve 'had these pains ever since that time off and on had you not? A. Yes.
“Q. And you knew that in 1944 you’d had an operation for an ulcer? A. Yes.
“Q. And when you had these pains as you did in ’53 you decided that possibly you were getting to the point where you should look into this thing again, isn’t that correct? A. Yes.
“Q. So that you Went to Dr. Kegaries and consulted him in connection with this condition, right? A. Yes.
“Q. Now you attributed -these pains to the fact that you had had this previous condition of an ulcerated stomach or intestine, didn’t you? A. Yes.
“Q. And Dr. Kegaries confirmed that for you. A. Yes.
“Q. So that in 1953 on the occasion you have told us about when you went t'o -see Dr. Kegaries you knеw that you had ulcer. A. Well, I wouldn’t necessarily say I had an ulcer, no, at that time. I had an ulcer 'before.
“Q. Well, you just told me, Mr. Ivory, that you attributed these gas pains to an Ulcerated stomach or intestine? A. Yes.
“Q. Yes. So that in your mind at least you were pretty well convinced you probably had an ulcer, weren’t you? A. Why, sure.”
Plaintiff and his wife testified that plaintiff told the soliciting agent Goetz thait he had had an u'lcer and about the operation in 1944, and thаt he would “take out” a policy “providing there are no riders”. In January, 1958, plaintiff suffered a severe ulcer attack, entered a hospitаl and -an operation was performed and it is in this -Connection that the claim in the present action was made.
The jury found against the defendant. It is defendant’s -claim that the evidence was such that -it was
*300
entitled to a directed verdict. We think it necessary only to consider the effect of plaintiff’s answer to the ninth question. It is the settled law that a material misrepresentation made by an applicant in reliance on wihich a рolicy is issued to 'him avoids the policy. Damgaard v. South Dakota Benev. Soc.,
An annotation discussing the question of the materiality of a representation as to whеther an insured has consulted a physician within a specified time prior to making application for insurance,
The consultation with or attendance by a physician contemplated by a question in an аpplication for insurance refers to a consultation or attendance for such an ailment as would affect the contract аnd not to include a consultation or attendance for a minor or temporary ailment. See annotation in
Plaintiff contends that the visit tо the physician in the fall of 1953 was for a minor or temporary ailment and that the answer to question 9 was not a material representation. The uncontroverted evidence is that plaintiff consulted the physician for abdominal pains which he was fearful were caused by “an ulcerаted stomaoh or intestine.” We agree that the testimony of the witness for defendant that if insurer had knowledge of such consultation it would not have аssumed the risk cannot be considered. Volunteer State Life Ins. Co. v. Richardson,
The judgment appealed from is reversed.