Scroggs v. Northwestern Mutual Life Insurance

MONROE, J. pro tern.

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—The plaintiff and respondent brought this action upon a life insurance policy issued by the defendant in the amount of $5,000, upon the life of her husband Earl P. Scroggs. The policy was taken out on February 10, 1956, and Mr. Scroggs died on March 20, 1956. An autopsy established that death was the result of a thrombosis. The autopsy surgeon testified that the heart showed evidence of a prior thrombosis which he estimated had taken place about eight years previous. The defendant alleged that the policy was invalid by reason of false representation and fraudulent concealment of material facts in the application made by Mr. Scroggs. The court found the issues in favor of the plaintiff and entered judgment for plaintiff in accordance with the prayer of the complaint. A motion for new trial having been denied, defendant appeals.

The application for insurance contained the following question and answer: “12. Has any physician, practitioner, or healer examined, advised or treated you within the last 5 years? No.” The evidence established that on January 2d, 1953, the deceased had come to the office of Dr. Arthur Ferree. The doctor produced his office record as follows:

“Jan. 2-53: Pain in upper abdomen that radiates out into both arms. It has been coming in short bouts of about fifteen minutes until last night, but last night it was almost continuous. Examination of abdomen indicated, scheduled for G-I series. Sample of barbatrate-A for temporary relief.”

It is the contention of the appellant that the question and answer were material to the application and the issuance of the policy; that had a truthful answer been made an investigation would have followed which would have revealed infor

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mation such that no policy would have issued. Appellant claims that the findings and judgment of the court are unsupported by substantial evidence and are contrary to law.

The policy contains the following language: “All statements made in the application shall, in the absence of fraud, be deemed representations and not warranties. No statement shall avoid this policy or be used in defense of a claim under it unless contained in the application.”

It is the general rule that the answers to written questions in an application for insurance are deemed to be material representations.