McAuliffe v. John Hancock Mutual Life Insurance

DRAPER, P. J.

Plaintiff, as named beneficiary, brought this action upon a policy of insurance upon the life of her deceased husband. Jury verdict was for plaintiff, and defendant appeals from the ensuing judgment.

The policy was issued to the husband in July 1959. In January 1962, it lapsed for nonpayment of a premium. The selling agent left an application for reinstatement with decedent’s secretary, for signature by the insured. It contained this statement: "It is hereby declared that . . . risk is now alive and in good health, and that since the due date of the first premium now unpaid has had no injury, ailment, illness or disease or symptom thereof, and has neither con-

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Suited nor been treated by any physician or practitioner, except as follows:-. ” The word “none” was typed in the blank. The application was signed by the insured. While dated April 17, 1962, it probably was actually signed a few days later. Reinstatement was granted.

It developed that in fact he had consulted Dr. Racz at the latter’s office April 14, 1962, and perhaps on April 16, 1962. The doctor’s testimony dealt with the examination of April 14. The doctor stated that the insured “has bronchitis, nervous, admits drinking, liver enlarged, had tremor of the hand, blood pressure 130 over 80, pulse 110, has wheezing with the lungs. ’ ’ The doctor conceded that his liver diagnosis derived solely from feeling by finger, that such a test was but cursory, and that he made no other. Moreover, there is no evidence that he told the insured of any of his diagnoses. The doctor also agreed that insured consulted him only because of a temporary indisposition—a hangover.

Defendant contends that failure to mention this consultation in the application for reinstatement constitutes a material misrepresentation.

In such an application, misrepresentation may void the policy, even though the insured does not intend to deceive

(California-Western States Life Ins. Co.

v.

Feinsten,

15 Cal.2d 413, 423 [101 P.2d 696, 131 A.L.R. 608]). But the subjective motivation and knowledge of the applicant may be material, insofar as they bear upon the issue of materiality of the representation. Here the inquiry about medical consultation was part of the same sentence asserting “good health” of the insured, and denying any “injury, ailment, illness, or disease or symptom thereof. ’ ’ Such an inquiry does not relate to minor indispositions but is construed as