Northwestern Mut. Life INS. Co. v. Wiggins, 15 F.2d 646 (9th Cir. 1926)

NETERER, District Judge.

Plaintiff by suit in equity seeks to cancel an insurance policy issued by it March 19,1924, on the life of William B. Wiggins, on the ground that material false statements were knowdngly made by him as to the condition of his health. The trial court found against the plaintiff and dismissed the suit. Reversal is sought. Among others, the foregoing answers appear:

“10. (a) When were you last confined to the house by illness ? How long ? What nature? A. Never was, that I remember, (b) When did you last consult a physician, and for what? A. 1924 — two weeks ago — for general examination, (c) Have you fully recovered and are“ you now in good health? A. Yes. (d) Give name and address of -the physician who attended you. A. Dr. A. W. Baird, (e) Give name and address of your usual medical attendant. A. Same, (f) Are you willing that your physician be consulted in regard to your health? A. Yes.

“11. Have you had any illness, disease, or accident during the past ten years not mentioned above? A. No.”

“18. Have you had since childhood any chronic or constitutional disease or severe injury not fully set forth above? A. No.”

It is asserted by appellant that the answers to subdivision (c), question TO, and to question 11, and to question 18, were untrue, and known to be untrue by the insured; that insured was at the time, and had been for several years, afflicted with myelogenous leukemia, a fatal disease, which caused his'death. The insured died September 4, 1924. The trial court found, and this is fully sustained by the record, that:

[1] The insured made categorical answer to all questions. It must he assumed that such answers, if true, gave all information required to determine acceptance of the risk, and to avoid the risk or cancel the policy it must be shown that the answers were false and known to be false by the insured. Massachusetts Bonding & Ins. Co. v. Duncan, 166 Ky. 515, 179 S. W. 472.

[2,3] Did the insured have knowledge of serious impairment of health ? He knew he had

“chronic” anemia; that is, it had continued for some time. “Good health,” “illness,” and “disease” must be considered, in an application for insurance, hot in the light of scientific technical definitions, but in the light of the insured’s understanding in connection with .which the terms are employed in the examination. .The most specific information that he had was that he had an impoverishment of the blood, or “thinness of the blood.” This condition, the record discloses, may be occasioned by hemorrhage. In the insured’s case the inception of condition to insured’s mind was the extraction of teeth, which was no accident, and the physicians studiously kept from him his true condition. His condition did not interfere with his usual avocation. No indisposition of health had interrupted his daily attention to business except a day or two for cold. He did not complain to his family nor to any one with whom he came in contact. His family believed him in good health.

[4] Sickness is a condition interfering with the usual avocations. Manhattan Life Ins. Co. v. Francisco, 84 U. S. (17 Wall.) 672, 21 L. Ed. 698. He took on new responsibilities, by increasing his interest in business many, thousand dollars. He was active and energetic. He was a layman, and, while he may have been conscious of a weakened condition of the body, perhaps from the loss of blood from the cavities of the extracted teeth, the proof does not establish such fact, nor that he knew he had a disease which tended to weaken or to undermine his constitution. Manufacturers’ Aceident Indemnity Co. v. Dorgan, 58 F. 945, 7 C. C. A. 581, 22 L. R. A. 620. He looked well; the examining physician believed him a good risk.

[5-8] His ignorance of affliction by disease or impairment of health is emphasized by the fact that he did not make his will until a month before his death. His answers were not warranties (Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676, 60 L. Ed. 1202), and are presumed to be true (14 R. C. L. p. 1343). Fraud is never presumed, arid to cancel the policy the burden is on the complainant to show that the answers were false by clear, cogent, convincing, and certain proof. Atlantic Co. v. James, 94 U. S. 207, 24 L. Ed. 112; Guaranty Life Ins. Co. v. Frumson (Mo. Sup.) 236 S. W. 310.

[9] The explanation of Dr. Baird to the telephonic conversation between him and the complainant’s medical examiner we believe with the trial court to be the more convincing. But in view of the Oregon law, which provides : “ * All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and that no such statement or statements shall be used in defense of a claim under the policy unless contained in a written application and unless a copy of such statement or statements be indorsed upon or attached to the policy when issued” (Or. L. § 6426) — is not material, since not in writing and attached to the policy. We believe with the trial court that the plaintiff did not sustain the burden imposed by law. Moulor v. American Life Ins. Co., 111 U. S. 335, 4 S. Ct. 466, 28 L. Ed. 447; Mutual Life Ins. Co. v. Hurni Packing Co., 260 F. 641, 171 C. C. A. 405; New York Life Ins. Co. v. Moats, 207 F. 481, 125 C. C. A. 143.

The judgment is affirmed.