Frederick v. Federal Life Insurance Co.

WOOD, J.

Plaintiff sought to recover judgment under the provisions of an accident and health insurance policy issued to him by defendant on October 19, 1928. In its answer defendant denied liability upon the ground that certain answers and statements made by plaintiff in his. application for the policy were false. Defendant filed a cross-complaint for rescission of the contract of insurance based upon the facts which it set up as a defense to the complaint. A trial by jury resulted in a verdict and judgment for defendant and the trial court rendered judgment for defendant on the cross-complaint. Plaintiff appeals from both judgments.

Plaintiff contends that defendant is estopped from denying liability and from canceling the policy for the reason that, as alleged, the defendant waived the misrepresentations pleaded in the answer when it issued the policy with knowledge that plaintiff had failed to set forth in his application certain matters mentioned in the report of the medical examiner. In the application for the policy plaintiff answered a number of questions propounded to him. In question (4) he was asked whether he had “ever had any of the following complaints, symptoms, or diseases” followed by an enumeration of about forty complaints or diseases. To this question he answered “no” in each instance. The next three questions and answers appear in the application as follows: “Question—(5) Have you within ten years consulted or been treated by a physician or any other practi

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tioner for any ailment or disease not included above? (If so, give dates and full particulars.) Answer—Influenza 1918. No compile or sequelae. Fever, which he thinks was malaria, once or twice about ten years ago. Mild attacks. In bed a few days. Question—(6) Have you ever had any serious illness? Answer—None only as above stated. Question—(7) Have you ever been under observation, care or treatment in any hospital, sanitarium, asylum or similar institution? (If so, give details.) Answer—No.” Plaintiff also answered “none” to the following question: “Have you ever had or have you now any bodily or mental infirmity or deformity (including hernia and rupture) or have you impaired hearing, any disease of either eye, lost a limb or the sight of an eye, or are you in any respect maimed or in unsound condition mentally or physically? (Give particulars.) ” In the report of the medical examiner for the company the following appears: “I certify that I have this day carefully examined Fred Jack Frederick (applicant’s Full Name) of Los Angeles, California in private, and that the applicant’s answers are in my own handwriting. Four years ago he was offered a few drinks of liquor and developed thereafter pains in the back for which he consulted a Dr. C. H. Woods, West 16th St., Los Angeles, a chiropractor who treated him with some form of lights for a few weeks—applicant not confined to home. Complete uneventful recovery.” Plaintiff points out that no mention was made in the application of the treatment by Dr. Woods for “pains in the back” and he now argues that the defendant corporation having received this information in the medical examiner’s report and having chosen to issue the policy, cannot deny liability by reason of the false statements relied upon by defendant to defeat recovery on the policy, statements which bore no relation whatever to the item reported by the medical examiner. The false statements claimed by defendant to have been made by plaintiff are set forth in its answer as follows: “That during a period beginning at least ten (10) years prior to the giving of said answers, and particularly during all of the year 1927, and from the first day of January, 1928, up until a very short time before said policy was executed, said Frederick was, and continuously had been, suffering from gonorrhea and from nephritis and from urethral discharges and