203 N.W. 600 | Minn. | 1925
The defense was that Mrs. Shaughnessy made false answers to certain questions in the application, which materially affected the acceptance of the risk and the hazard assumed by defendant. The jury returned a verdict for plaintiff, and defendant has appealed from a denial of its motion in the alternative for judgment or a new trial.
The application was made on January 12, 1922. Among the questions answered were these:
"Have you ever consulted a physician for or have you ever suffered from any ailment or disease of the brain or nervous system?"
"Have you consulted a physician for any ailment or disease not included in your above answers?"
"What physician or physicians, if any, not named above have you consulted or been treated by within the last five years and for what ailments or ailment?" *136
Each question was answered in the negative.
The evidence shows conclusively that, at different times within a period of 6 months immediately preceding the making of the application, the insured consulted and was treated by Dr. Lewis Dunn, a Minneapolis physician. She was anaemic and afflicted with severe headaches caused by brain pressure. A Wasserman test showed a positive reaction. Dr. Dunn informed her that she was suffering from a syphilitic infection. She was in a hospital for observation and treatment for about a week on two different occasions. The brain pressure was relieved by puncturing the spine and withdrawing a portion of the spinal fluid. When she applied for the policy, the treatment she received had given her relief and she appeared to be in a normal state of health, but in the spring of 1922 she became partially paralyzed and died in June, 1923. An autopsy disclosed that the cause of death was a glioma, or tumor of the brain, which had not been caused by the infection indicated by the Wasserman test.
It was the duty of Mrs. Shaughnessy to give truthful answers to the questions relative to medical consultation and treatment. They were material to the risk and, if false, the policy may be avoided. The rule is one of general application, 3 Cooley, Briefs on Ins. 2156, 1 Bacon, Life Acc. Ins. § 284, and is followed by this court, Olsson v. Midland Ins. Co.
To avoid the effect of the misrepresentation, the respondent sought to show that, although Mrs. Shaughnessy signed the application, she *137
did not make the answers contained therein. There was no fraud or mistake. The claim is that Mrs. Shaughnessy did not read the application before she signed it. She had the opportunity and the ability to read it, and, in these circumstances, the law does not permit a party to avoid his contract by showing that he did not know what it contained. Central Met. Bank v. Chippewa County St. Bank,
"It would introduce great uncertainty in all business transactions, if a party making written proposals for a contract, with representations to induce its execution, should be allowed to show, after it had been obtained, that he did not know the contents of his proposals, and to enforce it, notwithstanding their falsity as to matters essential to its obligation and validity."
In his brief respondent says:
"Respondent rests his case upon the policy and the application which together, under the provisions of section 3292 (G.S. 1913, now Sec. 3334, G.S. 1923) * * * and is not seeking to establish a different contract verbally made."
He contends that all the facts pertaining to the physical condition of the insured and her consultations with Dr. Dunn were fully known to appellant's agent, T.C. Snider, and introduced evidence from which the jury might find that Snider had been acquainted with the insured and her husband for several years; that he had frequently asked them to apply for insurance on the life of Mrs. Shaughnessy; that he knew she was receiving treatment from Dr. Dunn and that she was in a hospital in September, 1921; that he asked her husband about the nature of her illness and was told that he did not know; that on the day the application was written Snider was informed that Mrs. Shaughnessy had been in a hospital a short time before; that he called Dr. Pettit, the examining physician, to her home, and was present at the medical examination; *138 and that, without asking the questions relative to the physical condition of Mrs. Shaughnessy, Dr. Pettit inserted the answers. These answers were not true. If Mrs. Shaughnessy read them she must have known that they were untrue, and the question is whether the consequences can be avoided by showing that Snider knew the true state of facts and by imputing his knowledge to the company.
To attribute to the insurer information given to a soliciting agent, the information must have been imparted to the agent in the course of his agency. Inquiries respecting the health of the applicant, his previous or existing ailments, and consultations and attendance by physicians, are beyond the scope of the functions of an agent who merely solicits insurance; they pertain to matters dealt with by the medical examiner. For this reason, the knowledge which the jury might find Snider to have possessed is not attributable to the appellant. Bratley v. Brotherhood Am. Yeomen,
The doctrine of Kausal v. Minn. F.M. Fire Ins. Assn.
No evidence was introduced showing that the facts were correctly stated to Dr. Pettit, or that he knew that Mrs. Shaughnessy had consulted Dr. Dunn or had received medical treatment from him.
The order appealed from is reversed and the case remanded with directions to grant appellant's motion for judgment notwithstanding the verdict.