129 Mich. 112 | Mich. | 1901
This is an action on a policy of insurance issued on the life of Michael Rhode. Plaintiff recovered, and defendant brings error. It appears that on November 19, 1899, the application for insurance, jn the sum of $500, was made by deceased. A policy was issued on this application, bearing date December 7, 1899, On March 8, 1900, the insured died from tuberculosis pulmonalis. The plaintiff furnished proofs of death, and, upon the defendant’s refusing payment, instituted this suit.
It is contended by the defendant on this appeal that the evidence conclusively shows that the insured was not in sound health at the time when the application was made, and at the time when the policy was issued; that the insured misrepresented the facts in his .application relative to prior attendance and treatment by physicians; that the
The policy of insurance contained a provision as follows:
“No obligation is assumed by the company until the first premium has been paid, nor prior to this date, nor unless upon this date the insured is alive and in sound health.”
And the application contained a clause as follows:
“I further agree that the company shall incur no liability under this application until it has been received, approved, and the policy issued thereon by the company at its home office in New York, and the premium has actually been paid to and accepted by the company during my lifetime, and while I am in good health.”
The proofs tending to show that the deceased was afflicted with pulmonary consumption at the time of the receipt of this policy are certainly very strong, and, if the question were to be determined by us as a question of fact, there would be little room for discussion. But, as we view the case, the question of whether there was a conflict in testimony upon this subject must be determined by the answer to another question, which is raised by defendant’s counsel, which is whether or not the statement of the examining physician, made at the time of the examination, November 19, 1899, in which he states the condition in which he found the lungs of the insured, and his opinion as to his condition of good health, is admissible in evidence as against the defendant. It does not appear that this question has ever been presented to this court in just this form. But we have no doubt, on principle, that such testimony is competent evidence against the defendant. The physician is a representative of the insurance company. He is employed for the very purpose of determining the physical condition of the applicant. His examination is supposed to be made with the utmost care, and with due regard to the interests of his employer. We can conceive of no reason why his statements, made at the time, should
The application contained the statement of the insured that he had not been under the care of a physician within two years. The testimony shows, without dispute, that he was attended by at least one physician within the period named, and, on the trial, Dr. Kestell, who testified that he' attended upon the deceased on November 10, 1899, testified that deceased told him that he had been previously treated by Dr. Shurly. On motion of the plaintiff, this testimony was stricken out. We think there was error in this ruling. It is said that the previous question and answer, namely, as to whether he had been attended by a physician, was not stricken from the record. But the record shows the following:
“ Q. Do you know whether or not Rhode had been treated by any other physician before he came to your house ?
“A. He said he was.
“ Q. Who did he say treated him?
“A. Dr. Shurly.
“ Mr. Murfin: I object to that, your honor.
“ The Court: I think that may be stricken out.”
We think it can hardly be doubted that the jury must have understood that the testimony upon this whole subject was withdrawn from their consideration.
But it is said that there was nothing in the question to
It appears to have been suggested in the court below that, inasmuch as some,.of these facts appeared in the records of the company, in a previous application for insurance, which had been postponed, the company must be bound to take notice of what was contained in such prior application. But this position is negatived by the holding of the court in Brown v. Insurance Co., 65 Mich. 306 (32 N. W. 610, 8 Am. St. Rep. 894).
For the error pointed out, the judgment will be reversed, and a new trial ordered.