180 Iowa 1344 | Iowa | 1917
“I hereby make application for membership in the association, basing my application upon the following representation of facts, all of which I hereby certify to be true, complete and material to the risk. I agree that any statement made by me to the agent or solicitor of this application shall not bind the association unless written hereon.
“8. Give name and address of physician last consulted by you. Dr. Blackford, Rochester, Minn.
“When was this? April, 1914. For what? Intestinal operation. Has your recovery from this been complete? Yes. What other sickness or injury have you had in the .past seven years? No other.
“11. Are yo'u now in sound physical health ? Yes.”
Plaintiff is a lawyer, and at the time of the trial below was 46 years of age. He testified that, in January, 1914, he was operated upon at the Mayo Hospital in Rochester, Minn., for varicose veins in the duodenum; that he had his gall bladder removed, and in 17 days thereafter, left the hospital and went to the hotel. Very shortly thereafter, he began bleeding. He left Rochester for 10 days, tried a law suit, and, on March 26th following, was operated upon for an ulcer in the duodenum, at Avhich time other varicose veins Avere discovered. At this time, a new opening was made into his stomach. He returned home in April, became much better, gained his normal weight, his blood and breathing became normal, and he was apparently restored to health. He returned to the hospital November 20, 1914, although it is claimed that his visit at that time was incidental to a business trip in that vicinity. An examination made at this time of his blood and urine indicated the presence of tubercular trouble. He testified that he was not sick, but apparently in normal health.
At the close of the evidence, the attorneys moved for a directed verdict in favor of their respective clients. The motion made by counsel for appellant was overruled, whereupon the motion in favor of plaintiff was sustained, and judgment entered in his favor for the amount found by the court to be due.
The evidence as to the several operations above referred to is not disputed, but there is dispute as to the conversation between plaintiff and defendant’s agent, plaintiff claiming that he told the agent in detail about his prior illness and operations, and the agent denying most of it, the conversation occurring at the time the application was made out and signed. The application used was a printed form with a blank space following each question, in which the answers of the applicant were written. The space left for that purpose was sufficient only for very brief answers to the questions. One of the questions answered by plaintiff as to what physician he had last consulted, and when, was, “Dr. Blackford, Bochester, Minn., April, 1914.” It will be observed that the time given was the month- in which the last operation in the spring of 1914 was performed. This answer would seem to be in accordance with the undisputed facts. The purpose of the visit and consultation was an intestinal operation. The answer is brief, but was evidently deemed wholly sufficient by appellant at the time the policy was issued. If more information was necessary or desira
There is no merit in the claim that the answers here referred to were untruthful or misleading. He was next asked to state whether his recovery had been complete. He answered, “Yes.” This answer, under the evidence, is apparently as nearly correct and truthful as the applicant was capable of making. He testified that his blood and respiration had become normal; that he had regained his former weight; and that he was feeling well; and we hardly see how it can be said that there is such concealment or misrepresentation of facts as to constitute fraud. The only illness suffered by plaintiff within seven years preceding the date of the application was that resulting from the operations performed in January and March preceding. The separate operations performed on the dates indicated were upon the same organ, and the second was to further relieve the condition partially discovered at the time of The first, and to relieve the hemorrhages which continued from the time of the first operation. There is no evidence tending to show that plaintiff's answers to these questions were untruthful.
He was then asked whether, at the time, he was in sound physical health. To this he answered in the affirmative. As before stated, the answer was in harmony with all that was known by him of his physical condition at the time. He could hardly be expected to .do more than state truthfully the facts known to him at the time. There is absolutely nothing to indicate bad faith upon the part of applicant, either in concealing information or untruthfully or evasively stating the facts. We think the holding in Lakka v. Modern Brotherhood of America, 163 Iowa 159, and Teeple v. Fraternal Bankers’ Reserve Society, 179 Iowa 65, applicable to the facts in this case. While the language in the application in the cited case is somewhat different in
II. The policy in suit provided:
“This policy shall not cover * * illness beginning within 30 days from the date of this policy.”
We do not think it can be said that the loss of time resulting from the second operation is in any way traceable to the operation performed within thirty days following the date of the policy. The illness for which recovery is sought began when the last operation was performed. The condition requiring the treatment existed at the time the first operation was performed, but appellee was not ill. on account thereof, but was, as he testifies, in normal health, actively pursuing the duties of his profession. The only illness covered by the policy was that which so disabled the assured as to confine him to his house and totally prevent him from performing the duties of his profession.
It is our conclusion that no question was presented for the jury, and that the court did not commit error in instructing it to return a verdict for the plaintiff.
III. Appellant complains of the rulings of the court
Since we discover no error in the record, the judgment of the lower court is — Affirmed.