Pellon v. Connecticut Gen. Life Ins. Co.

On leave, duly obtained, counsel for the plaintiffs have filed a motion for reargument in these cases, pending which the entry of judgment has been withheld.

For a better understanding of the motion we first quote from our opinion as follows: "A comparison with our former opinion shows a substantial difference in the facts at the last trial from those of the first trial. Certain conclusions which are stated in our former opinion, although sustained by the evidence at the first trial, are not borne out by the evidence at the last trial. On page 521 of 105 Vt., 168 A. 701, 707, we state that the `M.I.B.' `card clearly indicates that the representations of the insured were not complete and true, and in view of the nature of the contract, it was sufficient to put the defendant upon inquiry.' Again on page 523 of 105 Vt., 168 A. 701, 707, `the "M.I.B." card informed the defendant that the written application contained false representations.' At the first trial these conclusions were borne out by the testimony of Dr. Robinson. The application of insured to the Mutual Life Insurance Company with his answers therein and the report and letter of Dr. Harkness were not then in evidence. Dr. Robinson did not so testify at the last trial and there was no evidence to that effect."

Plaintiffs say that, although avowing our adherence to the law of the case, we have reached our decision by a differentiation of the evidence at the two trials in respects not changing the legal effect of the "M.I.B." card as determined at the former trial, and have thus reached a result amounting to a complete departure from the law of the case. They refer particularly to the testimony of Dr. Robinson as to what he would or would not have done had he known of the card and its background, as recited in the opinion. Overlooking the claim to the contrary in the last complete paragraph on page 19 of defendant's brief, they say that "Such differentiation was not claimed nor argued by the defendant at the hearing, nor was it to be anticipated by the plaintiffs." They set forth fifteen subordinate grounds of the motion under this heading.

First, they say that we have not recited any evidence of Dr. Robinson or of any other witness that will change in legal effect the indicative or informative office of the card or the background of the card. In the second, third, fourth, and fifth subordinate grounds, they say that we have overlooked the facts that the indicative and informative effect of the card cannot be any other or different at this trial than it was at the other trial, and that if the card at the first trial clearly indicated that the insured's representations were not complete and true and informed the defendant that the written application contained false representations, as we formerly held, it indicated the same thing and gave the same information at this trial, unaffected by what any officer or agent of the defendant may say he would or would not have done if he had known about it; that we have overlooked what we said in the former opinion that "the card clearly indicates that the representations of the insured were not complete and true, and that the card informed the defendant that the written application contained false representation," which is none the less true now that the basis of the card appears; that such basis, in a greater degree than the card itself, has the same indication and furnishes the same information; that there is nothing, and can be nothing, in the testimony of Dr. Robinson as to what he would or would not do, that can affect the indicative or informative force of the card or of what lay back of it; and that while Dr. Robinson's testimony at the former trial was held to be of a character that "leaves no room for doubt" as to putting the defendant on inquiry, his testimony here as to what he would or would not have done, even if different, could not as a matter of law make that force different in its legal effect; they say that the decision appears to rest upon some supposed material difference in the testimony of Dr. Robinson as to what he would or would not have done if he had had the information upon which the card was based, but that we have overlooked the fact that what Dr. Robinson would or would not have done, while a subject proper to be proved, was not determinative of the question of the knowledge imputable to the defendant, and that his testimony here, if different from his testimony at the first trial, in this regard, could not effect a change in the legal effect of the card and its background; and they further say that we have overlooked the fact that whatever Dr. Robinson says he would or would not have done, the determinative factors are what would constitute reasonable inquiry and what facts as to insured's health would have been disclosed by reasonable diligence in prosecuting its inquiry, both of which questions we formerly held were for the jury, yet now hold, upon evidence of greater significance than the card alone, that such questions are not for the jury.

We agree with the plaintiffs that the indicative and informative effect of the "M.I.B." card, standing alone, cannot be any other or different at this trial than it was at the former trial, and that it cannot be affected by what any officer or agent of the defendant may say he would or would not have done if he had known about it. But the evidence at the second trial, which was not produced at the first trial, which disclosed the basis of the statement "consumptive tendency" in the card, deprives the card of the indicative force given to it in the former opinion that it informed the defendant that the written application contained false representations, as a suspicion that "there might be a tubercular condition developing" does not support the statement "consumptive tendency." We also agree that irrespective of what Dr. Robinson says he would or would not have done, the determinative factors are what would constitute reasonable inquiry and what facts as to insured's health would have been disclosed to the defendant by reasonable diligence in prosecuting its inquiry.

That a reasonable inquiry required an investigation as to the facts upon which the information in the "M.I.B." card was based may be admitted. If such an investigation had been made the following facts, which we repeat for clarity, would have appeared from evidence that was not produced at the former trial.

On October 14, 1929, insured signed an application to the Mutual Life Insurance Company of New York for a $10,000 policy in that company. He was examined on that date by Dr. W.R. Harkness, its medical examiner. In this application there were questions of similar import to those in the application to the defendant quoted in the opinion, and similar answers were given by insured. Dr. Harkness found a systolic blood pressure of 110 and a pulse rate of 110. In reply to the question: "Do careful inquiry and thorough physical examination show any indication of past or present disease or functional disturbance of the heart, arteries, respiratory organs?" he answered: "No" to each. In reply to the question: "Do you know of anything in connection with the insured's physical condition, family history or past health record not already recorded, which would affect his insurability?" he answered: "No." With his report of this examination Dr. Harkness sent to the company a letter reading as follows: "On examination of Mr. Paz this afternoon, he appeared somewhat lighter than when I examined him three years ago and while my examination brought out nothing definite, I could not help thinking there might be a tubercular condition developing. His rather high pulse and low systolic made it rather of a suspicious case." At the trial Dr. Harkness testified that this letter did not indicate that Paz was not an insurable risk.

These facts are not contradicted by the plaintiffs. So far as it appears from the evidence produced at the second trial, they are the only facts that a reasonable investigation would have produced.

When the case was here before, there was no certainty what facts would have been produced if there had been a reasonable inquiry by the defendant, and we held that, from the facts which were produced at the trial and from other circumstances shown in evidence, the jury might find that the defendant was estopped from asserting a forfeiture. But all the facts and circumstances which a reasonable inquiry would have produced were brought out in the second trial, and, as the facts are not disputed, the question whether such facts charge the defendant with knowledge of the false representations of the insured in the written application is for the court. Cummings v. Connecticut GeneralLife Ins. Co., 102 Vt. 351, 362, 148 A. 484.

In the sixth subordinate ground plaintiffs say that we have overlooked the facts that the difference in Dr. Robinson's testimony did not change the legal effect of the evidence as to the force of the "M.I.B." card; that at the former trial he testified that if he had had the information conveyed by the card, he would not have approved the application; that at this trial he testified to the same thing, except that he would not have approved it pending investigation and would have investigated; and that nevertheless the fact that the application had been approved by the underwriting department and these policies had been sent out before the card was received by the defendant appeared in the former trial the same as in this trial. It appears, however, that at this trial Dr. Robinson was permitted to testify as to what he would have done only upon the basis of the information back of the card, not upon what the card itself said, and that he also testified that if he had had the inspection service report, which was not introduced into the evidence at the former trial, he would have approved the risk.

As to the seventh subordinate ground, we did not treat the evidence of Dr. Robinson that if the policies had been sent out, he would have done nothing and would not have investigated, as alone controlling and determinative of what the defendant should have done. Cases have to be decided upon the evidence. Dr. Robinson was plaintiff's witness, and so far as his testimony was neither expressly nor impliedly contradicted plaintiffs are bound by it. Wellman, Admr. v. Wales, 98 Vt. 437, 440, 129 A. 317. Plaintiffs refer to defendant's claim as to the capacity in which one Frattini acted. We did not consider this claim.

The eighth, tenth, eleventh, and thirteenth subordinate grounds merely present similar questions to the foregoing and are answered by what we have said. In the ninth subordinate ground plaintiffs say that although avowing our adherence to the law of the case, nevertheless after remanding the case for determination by the jury of what was a reasonable inquiry upon the basis of the "M.I.B." card alone, we have now held that the additional information lying back of the card, together with competent medical testimony of the significance of that information, is not sufficient to make the question of reasonable inquiry for the jury. This amounts to nothing more than the presentation of matters which have already received our careful consideration and have been decided. Goodwin, Admx. v. Gaston et al., 103 Vt. 357, 370, 154 A. 772; McAllister v. Benjamin, 96 Vt. 475, 500, 121 A. 263.

In the twelfth subordinate ground the plaintiffs say that there was still a question for the jury if the testimony of defendant's underwriters was such as to raise some doubt. It was not such.

In the fourteenth subordinate ground the plaintiffs say that Dr. Robinson's testimony is sufficient to warrant an inference that the defendant was more intent on getting in the premiums and thereby putting the insurance in force than in making an inquiry. We do not think so.

In the fifteenth subordinate ground plaintiffs say that we have not viewed the evidence most favorably to the plaintiffs in arriving at our conclusion, and in the sixth main ground of the motion they point out several instances where they claim we have disregarded the rule whereby they are entitled to have the evidence viewed in the light most favorable to them. We have carefully read all the evidence and have mentioned in the opinion fair quotations from the medical testimony, and in so doing have given the plaintiffs all that they are entitled to under this rule. We could have quoted more extensively, but have had to condense what we had to say within a reasonable length. Although it is much a matter of judgment, we are satisfied that we have covered the matters accurately and in sufficient detail. We overlooked nothing that has been suggested.

In their second main ground of the motion plaintiffs say that we have given no effect, on the question of what was reasonable inquiry, to the knowledge with which, on the issue of forfeiture, the defendant was by law chargeable, namely, the knowledge of its own medical examiner, that is, that none of the answers relied on in the application, purporting to be the answers of the insured, were in fact such, and that the insured was not inquired of, and made no answer, as to tuberculosis. The questions which defendant's medical examiner asked insured, and his answers, were substantially the same as at the former trial, and as given on page 513 of 105 Vt., 168 A. 701. Although because of insured's fraud the plaintiffs are bound by the questions and answers appearing in the application, we agree that the defendant was chargeable with the knowledge of its medical examiner, and that this knowledge would have become a factor in case an investigation had been required. We did not overlook this as claimed by the plaintiffs. But assuming, contrary to our holding, that the defendant had information, the basis for which required an investigation, it is improbable that, had the medical examiner been required to seek out the insured and ask the identical questions in the application, he would have gotten any different answers from those already set down or than Dr. Harkness got when he asked substantially similar questions for the Mutual Life Insurance Company. The insured knew that he had tuberculosis, and by concealment of that fact was trying to load up with a large amount of life insurance.

In their third main ground of the motion plaintiffs say that we overlooked the fact that whatever particular answers in the application were false, the fraud of insured lying at the root of the forfeiture rests upon the ultimate fact that he had tuberculosis and concealed it upon examination. A more careful reading of the opinion will not bear this out. The remaining matters mentioned under this ground are disposed of by what we have already said, except that we cannot pass over without comment the misconception of the opinion by plaintiffs' attorneys, when they state that we appear to have adopted certain reasoning by holding in effect that even if the defendant had had in its file the reports of insured's sputum tests from the State Laboratory, instead of the "M.I.B." card, it would yet be rulable as a matter of law that there was no waiver.

In the fourth ground of the motion plaintiffs mention the availability of the records of insured's sputum tests. All that need be said as to this is to ask, why the defendant should have looked these up or have suspected their existence, when it had been told that the insured had not been sick to have a doctor.

In their fifth ground plaintiffs speak of imputed knowledge. There was none here in the respects claimed.

The remaining ground of the motion is sufficiently covered by what we have already pointed out.

Motion for reargument denied. Let full entry go down.