DiPasqua v. California Western States Life Insurance

AGEE, J. pro tem.

On September 23, 1945, defendant and appellant issued a policy of insurance on the life of Domenico DiPasqua naming his wife, Mary DiPasqua, as beneficiary. The insured was committed as a mentally ill person on January 15, 1947, and was an inmate of Napa State Hospital at the time of his death on January 29, 1947. Judgment for the widow on her complaint, and against the insurance company on its cross-complaint to cancel the policy, followed a nonjury trial.

The cause of death was diabetes. This condition was not known to the insured at the time of the issuance of the policy nor was it found in the two separate medical examinations had by the company prior thereto, although each examination had included an urinalysis. (The condition of diabetes was first discovered in 1946.) In its brief on appeal, appellant states that it “denied liability because of wilful and false answers of insured to a series of questions on applying for the insurance.” (App. Op. Br. p. 2.) These answers were made by the insured to two medical examiners for the company and have to do with his medical treatment and condition of health in the period of approximately one year prior to the issuance of the policy.

The company’s complaint, specifically, is that the following information was not revealed to it by the insured: from September 12, 1944, to November 16, 1944, Dr. Rosberg saw insured at his office on 13 occasions. His complaints were nervousness, worry, indigestion and fatigue. A series of examinations resulted in nothing being found. The insured then went into the University of California Hospital for four days of observation. Dr. Mattier was the consultant there. Nothing was found. The insured then went back to Dr. Rosberg. At his suggestion, the insured entered St. Luke’s Hospital on December 13, 1944, and remained there until December 23, 1944. Another series of tests was made, but again nothing was found. Upon leaving „St. Luke’s Hospital, the insured asked Dr. Rosberg: “Do you find anything?” and the reply was: “No, we are both leaving this hospital both none the wiser.” All of the laboratory tests, including blood and urine, had been negative. The insured was advised

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to rest and cut down on the amount of work he was doing. He followed this advice, and the record supports the finding that he was in good health at the time of the issuance of the policy.