165 P. 675 | Or. | 1917
delivered the opinion of the court.
“Where an applicant for life insurance correctly answered the questions propounded to him by the insurance company’s medical examiner, but without his knowledge the examiner wrote down incorrect answers,*593 the insurance company is estopped to take advantage of the wrong of its own agent. ’ ’
In Lyon v. United Moderns, 148 Cal. 470 (83 Pac. 804, 113 Am. St. Rep. 291, 7 Ann. Cas. 672, 4 L. R. A. (N. S.) 247), it was ruled that the trial court properly allowed the plaintiff to prove that the insured made a true statement to the medical examiner that he had the “grippe” and a slight attack of pleurisy; and where there was no pretense that he had actual knowledge of the contents of the report, but was merely asked to sign the statement at the end thereof, the court properly instructed the jury that if he had had the disease of pleurisy and answered “No,” it would be a misrepresentation of a material fact which would avoid the policy, but that if he told the true facts to the medical examiner, and he neglected or omitted to write the answer in his report, the insured was not responsible for such omission or neglect unless he had actual knowledge that the answer had been imperfectly or incorrectly written. So, too, in Pfiester v. Missouri State Life Ins. Co., 85 Kan. 97 (116 Pac. 245), it was decided that an applicant for insurance, without knowledge to the contrary, may assume that the agent has prepared the application according to agreement, that the company has written the policy according to the application, and that he is not negligent in failing to examine such instruments for errors and omissions.
‘ ‘ That if said answers contained in said application * * are in any respect false or untrue they were inserted in said application by the duly authorized medi*594 oal examiner and agent of defendant only after the full and exact truth had been communicated to him by the said Oscar F. Lindstrom and because of fraud and deceit on the part of said medical examiner; that the said Oscar F. Lindstrom signed the written application without fraud or attempt or intent to deceive the defendant and without collusion on his part with defendant’s medical examiner.”
It will thus be seen that the alterations, if any, in the answers to the medical examiner’s questions are not alleged to have been made without the knowledge of the insured. Webster’s Few International Dictionary defines the word “collusion” used in the reply as follows: “A secret agreement and co-operation for a fraudulent or deceitful purpose; a playing into each other’s hands; deceit; fraud.” It is possible, therefore, that Oscar F. Lindstrom may have had full knowledge of the medical examiner’s alleged scheme to defraud his principal without co-operating in any manner in such agent’s deceit. The rules of practice adopted by the Circuit Court of the State of Oregon for Multnomah County, where this cause was tried, require a party who attacks an adversary’s pleading by motion or demurrer also to give a written notice stating the specific question to be considered. Complying with this precept the defendant’s counsel served upon the opposite party a writing which inter alia states:
“You are hereby notified that in arguing the foregoing demurrer we will contend that after the defendant has set forth certain questions and answers claimed to have been made by the assured to the insurance company that the plaintiff must either affirm or deny the truth of the allegation contained in said answer, and that it is not sufficient reply to plead in the alternative.”
“He asked a few questions, not so very many; he asked him (Mr. Lindstrom) if his parents were living, how old they were, and a few other questions * * but I cannot exactly say the ones that were asked. Then he went on and said that is all the questions you need answer how, I will fill out the rest, and fix it all right.”
Mrs. Malmstein further testified:
“Doctor Flynn examined him, and told him he had only a little bladder trouble, and he said he would give him a bottle of medicine that would cure him in a little while, and he repeated this two or three different times, and he said he was sure that in three weeks’ time he would be all right.”
“Doctor Flynn and Mr. Lindstrom talked some about his condition. Doctor Flynn said he could be accepted all right. He said the little trouble you have is not very much, a little bladder trouble, we can get medicine that will cure you in a little while, about three weeks he would be well.”
This testimony was emphatically denied by Doctor Flynn, who stated upon oath that in his report of the medical examination he correctly noted Mr. Lindstrom ’s answers as he gave them. From the sworn statements of Mr. and Mrs. Malmstein the jury might reasonably have inferred that Oscar F. Lindstrom correctly answered every question propounded to him by Doctor Flynn, to whom he carefully detailed all his supposed physical ailments, and that, without his knowledge, the medical examiner changed his answers and supplied others where necessary so as to make it appear that Lindstrom’s application was a safe risk.
In Booth v. Moody, 30 Or. 222, 225 (46 Pac. 884), Mr. Justice Bean in discussing this subject observes:
“The extent and principle of the rule of aider by verdict is that whenever the complaint contains terms sufficiently general to comprehend a matter so essential and necessary to be proved that, had it not been given in evidence, the jury could not have found the verdict, the want of a statement of such matter-in ex press terms will be cured by the verdict, because evidence of the fact would be the same whether the allegation of the complaint is complete or imperfect. But if a material allegation going to the gist of the action is wholly omitted, it cannot be presumed that any evidence in reference to it was offered or allowed on the trial, and hence the pleading is not aided by the verdict. ’ ’
“That plaintiff was induced to sign said release by reason of false, fraudulent, and unlawful representations made by defendant to her with intent to defraud and deceive her; that defendant represented to the plaintiff that said policy of insurance was void and of no effect because of alleged and pretended false representations which defendant stated to plaintiff had been made to defendant by said Oscar F. Lindstrom as to his condition of health and which thereby caused said policy of insurance to be invalid and not binding upon defendant; that plaintiff relied on said false and fraudulent representations and was induced thereby to sign the pretended release in said answer referred to and to accept a nominal sum therefor under a misapprehension both of law and of fact as to her rights in the premises induced by said false and fraudulent representations so relied upon by her. ’ ’
It is argued by defendant’s counsel that the part of the reply last quoted fails to allege: (1) Whether the representations so imputed to the defendant’s agent were made with knowledge of their falsity; (2) that the statements were uttered by him with intent to defraud; and (3) that such narration was relied upon by the plaintiff. In Bailey v. Frazier, 62 Or. 142, 148 (124
“It has often been laid down as a rule for pleading fraud in this state that the representations must have been false; that the defendant making them knew they were false; that they were made with the intent to defraud; and that the party seeking to be relieved from the fraud must have relied upon such representations. ’ ’
In addition to the cases cited as supporting the legal principle thus recognized see also: McFarland v. Carlsbad etc. Sanatorium Co., 68 Or. 530 (137 Pac. 209, Ann. Cas. 1915C, 555); Cobb v. Peters, 68 Or. 14 (136 Pac. 656); Outcault Advertising Co. v. Buell, 71 Or. 52 (141 Pac. 1020); Corby v. Hull, 72 Or. 429 (143 Pac. 639); Ingram v. Carlton Lumber Co., 77 Or. 633 (152 Pac. 256); Hyde v. Kirkpatrick, 78 Or. 466 (153 Pac. 41, 153 Pac. 488).
In Schoellhamer v. Rometsch, 26 Or. 394 (38 Pac. 344), it was ruled that an intent to deceive was not such an essential ingredient of a charge of fraud as to render the complaint omitting that allegation vulnerable to attack after a general demurrer to the initiatory pleading had been overruled. In McFarland v. Carlsbad etc. Sanatorium Co., 68 Or. 530 (137 Pac. 209, Ann. Cas. 1915C, 555), it was held that a pleading charging-fraud should allege that the representations were false and either known by the person making them to be false, or were made by him recklessly as of his own knowledge without knowing whether or not they were true.
In Colorado Springs Co. v. Wight, 44 Colo. 179 (96 Pac. 820, 16 Ann. Cas. 644, 647), it was decided that a charge of fraud in a pleading which did not either expressly or impliedly allege that the defendant knew the representations to be false or that he intended them
“Any allegation which necessarily implies knowledge is sufficient. If the term ‘ fraudulently ’ is used in the declaration, complaint, or petition, an allegation that the defendant knew the falsity of the representations may be dispensed with. * * As a matter of pleading, ‘ fraudulenter without sciens, or sciens without fraudulenter’ is sufficient.”
An examination of that part of the reply last herein-before quoted will disclose that while the adjective “fraudulent” is used to qualify the name “representations” as there first employed, the adverb “fraudulently” is not used to limit or modify the verb “represented,” nor is it charged either that the defendant knew the representations to be false, or that they were made recklessly without knowing whether or not they were true, nor is it averred that the representations were made with intent to deceive. These omissions show that the part of the pleading referred to does not state facts sufficient to constitute a reply; and hence an error was committed in overruling the demurrer interposed on that ground. Other errors are assigned, but believing they will not be repeated the judgment is reversed and a new trial ordered.
Reversed and Remanded.