Laudan v. Mutual Life Insurance Co.

SPENCE, J.

Plaintiff brought this action seeking to recover damages for the cancellation of .a policy of life insurance, the cancellation and the surrender of which policy was alleged to have been procured by fraud on the part of defendants. Upon a trial by jury, plaintiff had judgment and from said judgment defendants appeal.

In presenting this appeal, appellants have listed several headings in their brief, practically all of which present, in one form or another, the claim that the evidence was insufficient to show actionable fraud on the part of appellants. In arguing these points, appellants have failed to state the evidence most favorable to respondent. There were numerous conflicts in the evidence, but on this appeal we are bound to disregard these conflicts and determine whether there was any substantial evidence to sustain the judgment. We

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will- therefore proceed to state the evidence offered by respondent.

In 1927 respondent took out a policy of life insurance with appellant Mutual Life Insurance Company of New York. Under said policy, the company agreed, in case of death, to pay $10,000 and, in case of total disability, to pay the sum of $100 per month and waive all premiums during the period of total disability. The annual premium of $320.90 was paid each year and, a week or ten days prior to September 13, 1933, respondent paid the premium due on that date for the ensuing year. He then expressed a desire to make a change in his policy and he was directed to appellant Conklin, who was the representative of the company. He told Mr. Conklin that he wanted to change to a twenty-year endowment policy, retaining the disability protection which he had under the existing policy. Mr. Conklin agreed to have the policy prepared and to notify respondent. No mention was made of retirement income insurance on this occasion. Mr. Conklin phoned respondent on September 15, 1933, and told him that the policy was ready. Respondent went to the office of the company on that day and Mr. Conklin told him that he had the policy worked up, but before going further it would be necessary to have respondent examined by a doctor. Respondent went to appellant Dr. Allen, a salaried employee of the company who kept regular office hours in the company offices. Mr. Conklin told Dr. Allen that respondent wanted to “change his policy”. The examination lasted for about 45 minutes and admittedly revealed that respondent was not in good health. Respondent’s blood pressure was high and his urine contained both albumen and sugar. This examination was treated by Dr. Allen and by the company conclusively as determining that respondent was then uninsurable. The testimony nevertheless shows that Dr. Allen merely told respondent that his blood pressure was a little high but that said condition did not amount to anything as it was probably caused by coming up in the high building. Otherwise he told respondent “You are in good health. . . . You are as sound as a dollar.” He directed respondent to see Mr. Conklin again. After respondent returned to Mr. Conklin’s office, Mr. Conklin excused himself and was gone for ten or fifteen minutes. Mr. Conklin returned and said that Dr. Allen had stated that respondent