G.R. No.

L-30685 May 30, 1983

NG GAN ZEE, plaintiff-appellee,

Alberto Q. Ubay for plaintiff-appellee.

Santiago F. A lidio for defendant-appellant.

ESCOLIN, J.:

This is an appeal from the judgment of the Court of First Instance of Manila, ordering the appellant Asian-
Crusader Life Assurance Corporation to pay the face value of an insurance policy issued on the life of
Kwong Nam the deceased husband of appellee Ng Gan Zee. Misrepresentation and concealment of
material facts in obtaining the policy were pleaded to avoid the policy. The lower court rejected the
appellant's theory and ordered the latter to pay appellee "the amount of P 20,000.00, with interest at the
legal rate from July 24, 1964, the date of the filing of the complaint, until paid, and the costs. "

The Court of Appeals certified this appeal to Us, as the same involves solely a question of law.

On May 12, 1962, Kwong Nam applied for a 20-year endowment insurance on his life for the sum of
P20,000.00, with his wife, appellee Ng Gan Zee as beneficiary. On the same date, appellant, upon
receipt of the required premium from the insured, approved the application and issued the corresponding
policy. On December 6, 1963, Kwong Nam died of cancer of the liver with metastasis. All premiums had
been religiously paid at the time of his death.

On January 10, 1964, his widow Ng Gan Zee presented a claim in due form to appellant for payment of
the face value of the policy. On the same date, she submitted the required proof of death of the insured.
Appellant denied the claim on the ground that the answers given by the insured to the questions
appealing in his application for life insurance were untrue.

Appellee brought the matter to the attention of the Insurance Commissioner, the Hon. Francisco Y.
Mandamus, and the latter, after conducting an investigation, wrote the appellant that he had found no
material concealment on the part of the insured and that, therefore, appellee should be paid the full face
value of the policy. This opinion of the Insurance Commissioner notwithstanding, appellant refused to
settle its obligation.

Appellant alleged that the insured was guilty of misrepresentation when he answered "No" to the
following question appearing in the application for life insurance-

Has any life insurance company ever refused your application for insurance or for
reinstatement of a lapsed policy or offered you a policy different from that applied for? If,
so, name company and date.

In its brief, appellant rationalized its thesis thus:

... As pointed out in the foregoing summary of the essential facts in this case, the insured
had in January, 1962, applied for reinstatement of his lapsed life insurance policy with the
Insular Life Insurance Co., Ltd, but this was declined by the insurance company, although
later on approved for reinstatement with a very high premium as a result of his medical
examination. Thus notwithstanding the said insured answered 'No' to the [above] question
propounded to him. ... 1
The lower court found the argument bereft of factual basis; and We quote with approval its disquisition
on the matter-

On the first question there is no evidence that the Insular Life Assurance Co., Ltd. ever
refused any application of Kwong Nam for insurance. Neither is there any evidence that
any other insurance company has refused any application of Kwong Nam for insurance.

... The evidence shows that the Insular Life Assurance Co., Ltd. approved Kwong Nam's
request for reinstatement and amendment of his lapsed insurance policy on April 24, 1962
[Exh. L-2 Stipulation of Facts, Sept. 22, 1965). The Court notes from said application for
reinstatement and amendment, Exh. 'L', that the amount applied for was P20,000.00 only
and not for P50,000.00 as it was in the lapsed policy. The amount of the reinstated and
amended policy was also for P20,000.00. It results, therefore, that when on May 12, 1962
Kwong Nam answered 'No' to the question whether any life insurance company ever
refused his application for reinstatement of a lapsed policy he did not misrepresent any
fact.

... the evidence shows that the application of Kwong Nam with the Insular Life Assurance
Co., Ltd. was for the reinstatement and amendment of his lapsed insurance policy-Policy
No. 369531 -not an application for a 'new insurance policy. The Insular Life Assurance
Co., Ltd. approved the said application on April 24, 1962. Policy No. 369531 was
reinstated for the amount of P20,000.00 as applied for by Kwong Nam [Exhs. 'L', 'L-l' and
'L-2']. No new policy was issued by the Insular Life Assurance Co., Ltd. to Kwong Nam in
connection with said application for reinstatement and amendment. Such being the case,
the Court finds that there is no misrepresentation on this matter. 2

Appellant further maintains that when the insured was examined in connection with his application for
life insurance, he gave the appellant's medical examiner false and misleading information as to his
ailment and previous operation. The alleged false statements given by Kwong Nam are as follows:

Operated on for a Tumor [mayoma] of the stomach. Claims that Tumor has been
associated with ulcer of stomach. Tumor taken out was hard and of a hen's egg size.
Operation was two [2] years ago in Chinese General Hospital by Dr. Yap. Now, claims he
is completely recovered.

To demonstrate the insured's misrepresentation, appellant directs Our attention to:

[1] The report of Dr. Fu Sun Yuan the physician who treated Kwong Nam at the Chinese General Hospital
on May 22, 1960, i.e., about 2 years before he applied for an insurance policy on May 12, 1962.
According to said report, Dr. Fu Sun Yuan had diagnosed the patient's ailment as 'peptic ulcer' for which,
an operation, known as a 'sub-total gastric resection was performed on the patient by Dr. Pacifico Yap;
and

[2] The Surgical Pathology Report of Dr. Elias Pantangco showing that the specimen removed from the
patient's body was 'a portion of the stomach measuring 12 cm. and 19 cm. along the lesser curvature
with a diameter of 15 cm. along the greatest dimension.

On the bases of the above undisputed medical data showing that the insured was operated on for peptic
ulcer", involving the excision of a portion of the stomach, appellant argues that the insured's statement
in his application that a tumor, "hard and of a hen's egg size," was removed during said operation,
constituted material concealment.

The question to be resolved may be propounded thus: Was appellant, because of insured's aforesaid
representation, misled or deceived into entering the contract or in accepting the risk at the rate of
premium agreed upon?

The lower court answered this question in the negative, and We agree.
Section 27 of the Insurance Law [Act 2427] provides:

Sec. 27. Such party a contract of insurance must communicate to the other, in good faith,
all facts within his knowledge which are material to the contract, and which the other has
not the means of ascertaining, and as to which he makes no warranty. 3

Thus, "concealment exists where the assured had knowledge of a fact material to the risk, and honesty,
good faith, and fair dealing requires that he should communicate it to the assurer, but he designedly and
intentionally withholds the same." 4

It has also been held "that the concealment must, in the absence of inquiries, be not only material, but
fraudulent, or the fact must have been intentionally withheld." 5

Assuming that the aforesaid answer given by the insured is false, as claimed by the appellant. Sec. 27
of the Insurance Law, above-quoted, nevertheless requires that fraudulent intent on the part of the
insured be established to entitle the insurer to rescind the contract. And as correctly observed by the
lower court, "misrepresentation as a defense of the insurer to avoid liability is an 'affirmative' defense.
The duty to establish such a defense by satisfactory and convincing evidence rests upon the defendant.
The evidence before the Court does not clearly and satisfactorily establish that defense."

It bears emphasis that Kwong Nam had informed the appellant's medical examiner that the tumor for
which he was operated on was "associated with ulcer of the stomach." In the absence of evidence that
the insured had sufficient medical knowledge as to enable him to distinguish between "peptic ulcer" and
"a tumor", his statement that said tumor was "associated with ulcer of the stomach, " should be construed
as an expression made in good faith of his belief as to the nature of his ailment and operation. Indeed,
such statement must be presumed to have been made by him without knowledge of its incorrectness
and without any deliberate intent on his part to mislead the appellant.

While it may be conceded that, from the viewpoint of a medical expert, the information communicated
was imperfect, the same was nevertheless sufficient to have induced appellant to make further inquiries
about the ailment and operation of the insured.

Section 32 of Insurance Law [Act No. 24271 provides as follows:

Section 32. The right to information of material facts maybe waived either by the terms of
insurance or by neglect to make inquiries as to such facts where they are distinctly implied
in other facts of which information is communicated.

It has been held that where, upon the face of the application, a question appears to be not answered at
all or to be imperfectly answered, and the insurers issue a policy without any further inquiry, they waive
the imperfection of the answer and render the omission to answer more fully immaterial. 6

As aptly noted by the lower court, "if the ailment and operation of Kwong Nam had such an important
bearing on the question of whether the defendant would undertake the insurance or not, the court cannot
understand why the defendant or its medical examiner did not make any further inquiries on such matters
from the Chinese General Hospital or require copies of the hospital records from the appellant before
acting on the application for insurance. The fact of the matter is that the defendant was too eager to
accept the application and receive the insured's premium. It would be inequitable now to allow the
defendant to avoid liability under the circumstances."

Finding no reversible error committed by the trial court, the judgment appealed from is hereby affirmed,
with costs against appellant Asian-Crusader life Assurance Corporation.

SO ORDERED.