Bankers' Life Insurance v. Miller

² Schmucker, J., delivered the opinion of the Court. This is an appeal from a judgment of the Court of Common Pleas of Baltimore City in favor of the appellee upon a policy of life insurance issued by the appellant. The policy was issued on December the sixth, 1901, and it insured for three thousand dollars the life of the appellee’s wife, Kate Miller, who died within six months thereafter. The appellee having brought suit upon the policy the appellant filed the general issue pleas and also a special plea asserting that Mrs: Miller had induced it to issue the policy by falsely and fraudulently representing at the time of her application therefor that she was in good health and was not afflicted with any disease or disorder tending to shorten life, when she was in fact not then, nor when the policy was issued in good health, but was at those times suffering from and afflicted with cancer of the uterus a disease which does tend to shorten life.

The quarterly premiums which fell due during the lifetime of the insured appear to have been paid and áfter her death due proof of that fact was furnished to the appellant. The sole defense made to the suit was that the insured had induced the appellant to issue the policy to her by false representations material to the risk. It appears from the record that after Mrs. Miller had, at the suggestion of one of the appellants’ solicitors, sent in a written application for the policy, the appellant sent Dr. Craighill its medical examiner, to make an examination of her physical condition. The doctor went to her residence for that purpose taking with him a printed series of interrogatories which he put to her and wrote down her answers in detail in her presence.

She then signed the paper containing the questions and answers and the doctor attested her signature and also appended over his own signature a certificate of having’made the examination on December 4th, 1901, and a recommendation of the applicant for insurance. Two days after the receipt by the appellant of this report and recommendation it issued the policy. This report of the physician’s examination of Mrs. Miller ³ was put in evidence in the case and a copy of it appears in the record. It shows that she was asked whether she had ever had cancer or tumors or ulcers of any kind, or any menstrual disorder or symptoms of uterine or ovarian disease, also whether she had ever been under treatment at any asylum, cure or sanitarium.

To each of these questions she answered in the negative. She also stated in response to appropriate interrogatories that Dr. F. G. Moyer was the last physician whom she had consulted and that the consultation had been during child birth. One of her answers stated that her youngest child was then eight years old. Another answer stated that she was in good health as far as she knew and still another answer stated that her mother was then seventy-five years old and in good health.

Dr. F. G. Moyer was called for the defense and testified that he had attended Mrs. Miller as a physician for seventeen or eighteen years prior to her death, that he had performed a surgical operation on her at her residence on October 24th, 1900, to remove a malignant growth from her uterus that was jeopardizing her life, and that she was then suffering from a cancer at the neck of the womb and had been having very severe hemorrhages from that cause, although he did not think that she knew the true nature of her disease, and that in December of the same year it became necessary to perform a second operation upon her. He further testified that he explained to her the necessity for the second operation and advised her to go to the City Hospital to have it performed as it could be done better there, that she went to the hospital where the operation was performed in his presence by Dr. Thomas Opie. He further testified that he continued to attend her for sometime after the second operation and that she continued to have hemorrhages from time to time until her death which was caused by the cancer. He also said that the last time he had attended her for child birth was seven or eight years before her death.

Dr. Thomas Opie was then called as a witness for the defense. After stating that he had been Dean of the College of ⁴ Physicians and Surgeons for thirty-two years, he said that he had performed the operation for carcinoma of the cervix uteri on Mrs. Miller in December igop. He produced written notes of the operation which he said had been dictated at the time by him to his assistant by whom they were taken down as dictated. On these notes under the head of “Family History” it is stated that the patient’s mother died of carcinoma of the womb.

It is also stated on the notes “Patient states that she has noticed the above symptoms (excessive hemorrhage, constipation, &c.), for past year or eighteen months.” Dr. Jerome T. Atkinson of New York, the Medical Director of the appellant, testified on its behalf that no policy of in surance is ever issued by it except upon an application and a medical examination of the applicant approved by him, that he had seen and considered the application and medical examiner’s report in the case of Mrs. Miller and having come to the conclusion therefrom that the applicant was insurable he stamped his approval on it which was equivalent to a permission to the policy department of the appellant to issue the policy thereon and that the policy was in fact so issued. Robert F. Moore, the General Manager of the appellant, also identified the application of Mrs. Miller and the examiner’s report thereon as the papers upon which the policy was issued. The testimony of these physicians and of Robert F. Moore is entirely uncontradicted. Two exceptions appear in the record but the appellant only, insisted at the hearing in this Court upon the one taken to the Court’s action upon the prayers.

At the close of the evidence the plaintiff and defendant each offered three prayers. The Court granted all of the plaintiff’s prayers and