146 A. 755 | Md. | 1929
On March 22d 1927, Edward L. Held applied to the Mutual Life Insurance Company of New York, appellant, for two policies of insurance on his life for $5,000 each, which were issued to him. He died on February 6th, 1928, and, on the refusal of the appellant to pay the insurance, his wife and beneficiary, Katherine I. Held, entered suit and, judgment thereon being against the appellant, it appealed. Nine exceptions were reserved, of which eight were to rulings on the evidence and one, the ninth, to the rulings on the prayers. The first eight exceptions have been abandoned, leaving for consideration on this appeal the court's action in granting the plaintiff's three prayers, in overruling the defendant's exceptions to the plaintiff's first and second prayers, and in refusing the defendant's second to tenth and twelfth to twenty-first *553 prayers inclusive, its first, eleventh and twentieth prayers having been withdrawn.
The defendant's second prayer was a demurrer to the evidence, and the third asked for an instructed verdict on the ground that the uncontradicted evidence showed that certain statements of the insured in his application for insurance were untrue and were material to the risk. These prayers, therefore, require a recital of the facts set up in the application which reflect upon the medical history of the assured up to the time of the application.
Question 16 is: "What illnesses, diseases, injuries, and surgical operations have you had since childhood? Answer: Typhoid fever in 1900, duration 42 days, and a broken arm when a boy. 17. State every physician or practitioner who has prescribed for or treated you, or whom you have consulted in the past five years for any ailment, serious or not serious"? To which the applicant stated that he had been overcome by heat July 5th, 1926, when he was treated by Dr. John S. Green of Towson, and in November, 1926, he had nine teeth extracted by Dr. Pennington of Baltimore. Question 18 was: "Have you stated in your answer to question 16 all illnesses, diseases, injuries and surgical operations which you have had since childhood"? To which he answered "Yes." Question 19: "Have you stated in answer to question 17 every physician and practitioner consulted during the past five years and dates of consultation"? Answer: "Yes." (32) "Have you been under any restriction of diet or medical observation of any kind within one year for any purpose"? Answer: "No."
The medical examination was made by Dr. H. Warren Buckler for the appellant, who reported that the applicant's appearance was healthy, pulse rate 70, regular; urinary analysis clear, no albumen or sugar, and that "a careful inquiry and thorough physical examination show (no) evidence of past or present disease or functional disturbance of" brain or nervous system, heart, arteries, respiratory organs, kidneys, digestive organs," etc. The company accepted the risk and issued the policy subject to a fifty per cent. increase of *554 premium on account of the heat prostration and conditioned on the use of a truss for a hernia.
After the death of the insured, his family physician, Dr. Green, signed the death certificate, wherein he gave the cause of death as "coronary occlusion," preceded and complicated by arterio sclerosis. At the trial Dr. Green testified that he had been Edward L. Held's physician for six years; that for five years, except for the heat exhaustion, he had treated him for ordinary ailments, "for colds and he would come feeling tired and run down and wanted a tonic and he would sometimes come on account of nervousness. Just nothing of any serious nature that he ever complained of to me." He could not say how often he came, as the charges were for attention to wife and son as well, and all charged to Mr. Held, but says the visits were "not usually frequent, not any more than you would have your average patient," and estimated the number of visits at six times a year for 1925 and 1926. "I should say in taking it over the last two or three years that his main complaints were that he felt tired out and nervous, sometimes inability to rest properly and lack of appetite and sometimes towards the last few months of his life he complained of some digestive disturbances, inability to digest his food properly." "On these occasions he had some arterio sclerosis, that is, the surface vessels." The last time he saw Mr. Held prior to March, 1927, he was in good health. His condition was nothing unusual for a man fifty years of age. He said arterio sclerosis is a symptom and not a disease, and is a condition existing in practically everyone of fifty or more and grows with age. In answer to the question, "Did you ever tell him he had any kind of arterial sclerosis," Dr. Green answered, "No." He said he only recalled having gone to Mr. Held's house on two or three occasions, the night of the heat prostration, the day of his death, and he thought he was there the night following the teeth extraction. On all other occasions he saw him at his office. Dr. Green also testified that the ailments about which he had complained to him were not attributed to his arterial condition, and that there was no necessary connection between the sclerosis in the radial *555 arteries, which could be discovered by contact with the arteries themselves, and the coronary arteries.
The appellant's contention is that the complaints or illnesses for which the applicant consulted Dr. Green were material to the risk and should be so held as a matter of law, not because any of them were necessarily serious, but because of the assumption that if they had been disclosed the appellant would have rejected the application for insurance. In support of this contention it citesBankers Life Ins. Co. v. Miller,
In the case of Aetna Life Ins. Co. v. Millar,
But the appellant says there is a very clear distinction be-between *557
that case and the one now before this court, because the consultations there were for a temporary trouble, whereas here the trouble was progressive. This may be true as a comparison of ailments or conditions, but the principle is the same. There the insured "had no reason to think he had any disease," but he did know he had consulted two physicians about it within a month and failed to disclose the fact. Here the applicant had arterio sclerosis and never knew it, but had consulted his physician perhaps a dozen times in two years for what the physician says were minor and not serious ailments, in no way related to the disease or condition of which the patient died. How, then, can we say as a matter of law that the appellant would have rejected the application, or have made a more careful investigation of the applicant's health and physical condition, when there is evidence in the record that the arterial condition of the insured was not referrable to the complaints or ailments of the omitted consultations? This is a controverted fact for determination by a jury. For other cases of failure to give information of illness, treatment, or consultation, which were held for the jury, seeGreat Eastern Casualty Co. v. Schwartz,
Because we are of the opinion that there is evidence that the ailments about which the applicant consulted his physician and failed to mention the consultations in his application for insurance were not of a serious or dangerous character, the question of their materiality to the risk was properly left to the jury, and the defendant's second and third prayers were, therefore, properly refused.
The plaintiff's prayers in this case were the plaintiff's second, third, and sixth prayers in the case of Mutual Life Ins.Co. v. Robinson,
This court being of the opinion that the granted prayers fairly submitted the questions involved in this case, the judgment appealed from will be affirmed.
Judgment affirmed, with costs to the appellee.