For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
[53 NJ Page 426] This is a suit upon a health and accident policy issued by defendant Progressive Life Insurance Company (the claim against Metropolitan Life Insurance Company was disposed of by the parties). The insured died before trial and his personal representative was substituted. Plaintiff obtained judgment on a jury verdict, but the Appellate Division reversed, finding that the carrier was entitled to prevail as a matter of law. Johnson v. Metropolitan Ins. Co., 99 N.J. Super. 463 (App. Div. 1968). We granted plaintiff's petition for certification. 51 N.J. 466 (1968).
The policy was issued on December 13, 1961. Annexed to it is a copy of the application. Questions 10 and 13 are involved. They read:
"10. Have you ever been treated for, or ever been told that you had any one or more of the following: Tuberculosis, or other disease of the respiratory system? No Epilepsy? No Heart Disease? No High or low blood pressure? No Kidney disease? No Stomach or gall bladder trouble? No Diabetes? No Rheumatism in any form? No Disease of the brain or nervous system? No Any impairment of sight, speech or hearing or any disease of eye, ear, nose or throat? No
13. Have you consulted a physician or other practitioner within the past five years or to the best of your knowledge and belief have you had any illness or disease not mentioned in the answers above? Yes [X] No [ ]"
Immediately below the list of questions appears:
"REMARKS: -- Give full details including names and addresses of attending physicians, dates and reasons when any questions 8 through 13 are answered 'Yes'."
At this point, the application, referring to 13, disclosed only that a hydrocele was removed surgically by Dr. R. Gove of Brant Beach, New Jersey.
The insured became totally disabled on August 5, 1963 because of Alzheimer's disease, a disease of the brain, from which he ultimately died. The insurer agreed there was no misrepresentation with respect to that disease. Nonetheless the insurer resisted the claim because of unrelated representations it contends were false and material to the acceptance of the insurance risk. Specifically, the insurer contended the deceased had suffered from and been treated for coronary insufficiency and should have so stated in response to the questions quoted above.
The wife of the insured sought to testify that the insured disclosed to defendant's agent all of the facts defendant
claims were withheld. Defendant objected on procedural grounds. It complained that plaintiff had not filed a reply to its answer and had not revealed the tendered proof in the pretrial order. Defendant added that the agent was no longer in its employ and it was not prepared to meet the proposed proof. The trial court sustained the objection. Although our judgment does not turn upon it, we note our disagreement.
The proffered proof was simply part of plaintiff's denial of the truth of the separate defense in the answer that there had been a misrepresentation. R.R. 4:8-4 provides that "Averments in any answer setting forth an affirmative defense shall be taken as denied, when not avoided in a reply; issue shall be deemed to have been joined upon averments in an answer setting forth other matters." Defendant could have explored plaintiff's factual claim by pretrial discovery. In any event it should have at the pretrial conference, but, as is too often the case, no effort was made to smoke out the factual positions of the parties. Defendant was content with a restatement of its separate defense in general terms with no specificity at all, and plaintiff did no more than reaffirm the allegations of her complaint. The pretrial order was plainly inadequate. When litigants thus shun an opportunity to find out what is involved, they are not well situated to complain. We add that in a case of this kind an insurer could hardly be unaware of a possible charge that answers in the application were incomplete because its agent filtered out data he deemed to be of no interest to his employer. An applicant could understandably look to the agent for an explanation of questions which may be unclear when related to the applicant's factual situation.
We turn to the evidence that was admitted. It appears that the insured had some pain in his chest and shoulder for which he consulted Dr. Gove on November 19, 1957. He saw Dr. Gove on December 3, 13, and 27 of that year. Dr. Gove, who is not a cardiologist, took an electrocardiogram which, he believed, showed some minimal changes "suggestive of coronary
insufficiency." Dr. Gove said he advised the patient not to work for a while and prescribed medication for coronary insufficiency, but the record is not clear whether he did so only on the possibility that it existed. The closest the witness came, in answer to counsel for the defendant who had produced him, was:
"Q. And your diagnosis as a result of that [the electrocardiogram mentioned above] in November 1957 was a definite coronary insufficiency, was it not, Doctor? A. Clinically, that was my impression."
The doctor's testimony is also obscure as to whether he told his patient he suffered from coronary insufficiency or only that there was a possibility of it. The direct examination on behalf of defendant reads:
"Q. Did you make any diagnosis as to what his condition was on November 19, 1957, Doctor? A. I felt he had a coronary insufficiency.
Q. And did you tell Mr. Johnson what your findings were? A. I don't have anything written to that effect, but I'm sure I did."
Whatever Dr. Gove told his patient, it appears he did not tell him that coronary insufficiency was itself a "disease." The doctor said that "coronary insufficiency itself is not a disease. It is more of a symptom, really, than it is specifically a disease. People present symptoms of coronary insufficiency. It is not really a specific disease in itself, to my knowledge." Asked whether there were any chest complaints after 1957, Dr. Gove said, "I think when I was looking over my notes that on the 27th of October of '61 he complained of pains in his chest, at which time I gave him medication also for chest pains, although I didn't see in my notes what my diagnosis was, but the drug that I gave him was primarily for cardiac distress." There was no testimony as to what he told the patient at that time.
As we noted above, Dr. Gove first saw his patient with respect to the chest complaint on November 19, 1957. He said he advised the patient to see a specialist on December 13, 1957 but did not know whether he did. It appears that
on May 5, 1959 the patient consulted Dr. Slotoroff. Dr. Slotoroff, who also was not a cardiologist, took an electrocardiogram which was negative, and had the patient examined by a radiologist to seek other possible explanations of the complaint. Dr. Slotoroff concluded and told the patient there was no coronary artery disease and "convinced him he could do his active work without any problem."
There was also expert testimony that the electrocardiogram taken by Dr. Gove in November 1957 was within normal limits; that examinations in 1964, after the onset of the fatal illness, revealed no evidence of heart disease or coronary disease; that medically the findings in 1964 negate the hypothesis of coronary insufficiency in 1957; and that the distress experienced in 1957 was the result of tensions associated with the insured's work as a builder.
The insured's wife testified that her husband told her in 1957 that Dr. Gove said he might have a heart condition; that Dr. Gove had simply advised him not to work so hard; that her husband was able to work throughout the period in question; that he did not feel he had a heart condition; that in 1959, being tired, he went to Dr. Slotoroff to get his opinion; that after the consultation with Dr. Slotoroff, her husband said he did not think there was anything wrong with his heart; and that her husband made no complaint of chest pain from 1958 on.
In an effort to show the insured knew he had a cardiac disease, defendant introduced the hospital records in connection with the illness which ultimately took his life. The records show that upon admittance the insured was partially paralyzed and his speech was slurred. The "Past medical history" included "3-5 yrs ago had 'Heart attack' & nervous breakdown. Patient gives vague hx [history]." The record notes that "patient is a builder -- has much tension on job -- patient cried during history at realization of paralysis." A request to a ...