Massachusetts Protective Ass'n v. Allen

54 F.2d 788, 1931 U.S. Dist. LEXIS 1914
CourtDistrict Court, W.D. Missouri
DecidedNovember 20, 1931
DocketNo. 1648
StatusPublished
Cited by4 cases

This text of 54 F.2d 788 (Massachusetts Protective Ass'n v. Allen) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Massachusetts Protective Ass'n v. Allen, 54 F.2d 788, 1931 U.S. Dist. LEXIS 1914 (W.D. Mo. 1931).

Opinion

OTIS, District Judge.

The plaintiff brings this suit in equity praying the cancellation of a certain policy of health and accident insurance issued by it to the defendant upon the latter’s application, dated at Colorado Springs, Colo., June 18, 1928. The theory of the bill is that in the application false and fraudulent representations were made by the defendant. It is alleged that the policy would not have been issued had a true statement of facts been made by the defendant. More particularly it is alleged that whereas the defendant had, prior to his application, suffered from diseases known as “rheumatism,” “acute rheumatic heart,” and “myocarditis,” he fraudulently concealed those facts from plaintiff, and in answer to a question in the application as to whether he had “been disabled or consulted a physician within the past five years” answered only that in April, 1925, he had been operated on for rupture from which he had had a complete recovery and that in April, 1929, he had had a tonsil operation from which he had had a complete recovery, and that in answer to a question in the application, “Do you regard yourself as in good health and sound physical condition?” he answered, “Yes.”

The answer of the defendant sets up that the defendant did, in answer to questions propounded to him by the plaintiff’s agent, give the agent, and through the agent to the plaintiff, full and truthful information concerning disabilities theretofore suffered by him. More particularly it is alleged in the answer that he advised the plaintiff, through its agent, that he had a heart attack which had been diagnosed as acute rheumatic heart and that he had had a tonsil operation as a [789]*789part of the treatment for acute rheumatism of the heart and that at the time of the application he believed himself to be in good health and sound physical condition and so represented to the plaintiff’s agent. It is further alleged in the answer that the blanks in the application were filled out by the plaintiff’s agent and that the defendant signed the application without having read it and assuming that the plaintiff’s agent had inserted in the application the information which the defendant had given him. It is alleged in the answer that the plaintiff had all of the information which its agent had received from the defendant and that it is now estopped by reason of sueh knowledge to assert that it did not know of the disabilities suffered by the defendant before the time of the application. It is alleged in the answer that the contract here is a Colorado contract, subject to the laws of Colorado, and that by the laws of that state, as construed by the Supreme Court thereof, an insurance company is bound by information given to its agent by an applicant for insurance, notwithstanding the applicant has signed a written application in which, without his knowledge, false or incorrect answers to questions asked are inserted by the agent. Further the answer denies any fraud, deceit, or misrepresentation on the part of the defendant.

1. At the trial of the ease the testimony of five witnesses was presented, two for the plaintiff and three for the defendant. The defendant testified in person. Other witnesses testified by depositions. In addition to the testimony of witnesses, certain exhibits were offered and received in evidence.

The principal controversy of fact developed by the testimony was as to whether the defendant at the time his application for insurance was solicited by the plaintiff’s agent truthfully stated to him that in 1927, prior to the time of his application, he had suffered from “acute rheumatic heart.” In the application signed by the defendant there was no reference to the fact that the defendant had in 1927, or at any other time, suffered from that disease.

Plaintiff’s agent testified that, as to the questions in the application touching the previous health of the defendant, he (the agent) wrote in the application exactly what was stated to him by the defendant. He testified that the defendant said nothing concerning any previous affliction with his heart. As against this testimony, the defendant said he had given the plaintiff’s agent exaet information as to his previous heart attack and had told him exactly what was said to him by his physician. In this defendant was corroborated by two other witnesses, who testified they were present when the application was taken and that they heard the defendant give plaintiff’s agent the information to which he testified. Defendant testified that he did not read the application after it was filled but by the plaintiff’s agent and that he did not know that it did not contain a truthful summary of the answers -he had given to the questions asked.

The preponderance of the evidence supports the contention of the defendant that he did truthfully report his health condition and the heart disabilities he had suffered to the agent.

A question of fact, of course, is not to be decided by the number of witnesses, but I am convinced from the evidence upon the subject that the defendant did make truthful and full statements. Of all the witnesses the defendant alone appeared in court in person. His appearance, conduct, and demean- or upon the witness stand were those of an honest man. He answered questions frankly and with no apparent intention to mislead. When he was in good health and able to engage in employment, he was repeatedly promoted’ by his employer to positions of truth and importance. That- tended to corroborate his credibility. When it is considered that his positive statement concerning the vital point here was supported by two others who had no interest in the case at all, and when it is further considered that the reliability of the plaintiff’s agent is made somewhat questionable from his testimony in his deposition that as to certain questions in the application he had written down answersi purporting to have been made by the defendant when he had not even asked the defendant the questions it was his duty to ask, when all of these things are considered, the question of fact here must be resolved in favor of the defendant.

2. Upon all of the testimony I make the following finding of facts:

(1) I find the fact to be that the defendant was solicited for an application for insurance by the plaintiff’s agent. '

(2) I find the fact to be that the defendant signed the application offered in evidence by the plaintiff after the answers to the questions in the application had been written out by the plaintiff’s agent, and I find that the defendant did not read the application or the answers written therein at the time he [790]*790signed the application or at any time before the policy of insurance was delivered to him and the first premium paid by him.

(3) I find the fact to be that prior to the m'aking of the application, and in the year 1927, the defendant was afflicted with what was then diagnosed as “acute rheumatic heart,” and that the defendant had full knowledge of that fact at the time his application was taken. I find that no reference to this previous heart disability is contained in the written application or in the answers therein written by the plaintiff’s agent, although certain of the questions contained in the application called for a revelation of this previous heart attack.

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Cite This Page — Counsel Stack

Bluebook (online)
54 F.2d 788, 1931 U.S. Dist. LEXIS 1914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/massachusetts-protective-assn-v-allen-mowd-1931.