Dulany v. Fidelity & Casualty Co.

Schmucker, J., delivered the opinion of the Court. This is an appeal from a judgment of the Superior Court of Baltimore City in favor of the appellee, as defendant below, in a suit on one of its disability policies. The policy of which a copy appears in the record, insures the appellant, to whom it was issued, against disability or death resulting from accident and also against disability resulting from disease. By the terms of the policy the appellant was entitled to receive from the company $25 per week during a disability, resulting from accident, which totally prevented him from attending to any of the duties of his occupation; but to an amount not exceeding $5,000.

If the injuries causing the ³⁰ disability were received by the assured while riding on an elevator or as a passenger in a public conveyance propelled by steam, compressed air, electricity or cable; or in consequence of the burning of a building while he was in it he was entitled to receive $50 per week during total disability but to an amount not exceeding $10,000. If the injuries so received by the assured resulted in only partial disability he was entitled to receive during such disability, for- a period not exceeding twenty-six weeks “a sum to be determined by the company but not less than twenty-five per cent nor greater than seventy-five per cent of the weekly indemnity before specified depending upon the extent of the disability.” The policy further provided that “If the assured shall suffer from bodily disease or illness not hereinafter excepted and such disease or illness shall wholly disable and prevent the assured from performing any and every kind of duty pertaining to his business or occupation the company will pay to him twenty-five dollars ($25) a week for the period of such disability during which he shall be necessarily confined to the house; any disability of less than seven consecutive days or in excess of fifty-two weeks is not covered.” Other provisions of the policy, pertinent to the present case, required prompt written notice to be given to the company at New York City of any disability for which a claim was to be made with full particulars and the name and address of the assured, and affirmative proof of the. duration of the disability to be furnished, within two months after its termination, to the company. It was also provided in the policy that “Legal proceedings for recovery hereunder may not be brought before the expiry of three months from date of filing final proofs at the company’s' home office, nor .brought at all unless begun within six months from time of * * * the termination of disability.” It was further provided that claims not brought in accordance with the foregoing provisions would be forfeited to the company. The policy also provided that an agent had no authority to change it or waive any of its provisions, and that no notice to ³¹ any agent or knowledge of his or of any other person should be held to effect a waiver or change in the contract or any part of it, and specified that the only method in which a change in the policy or a waiver of any of its provisions could be made was by an endorsement thereon signed by the officers of the company.

Attached to the policy is a series of interrogatories and answers thereto made by the assured, designated a “Schedule of Warranties” on which appears the following statement designated “O.” “I have not been disabled nor have I received medical or surgical attention during the past seven years, except as follows: None.” The appellant testified that he took out the policy through the defendant’s agent, Mr. Harrison, who approached him about it and he took his word for the policy. The record also contains evidence tending to show that on January 2nd, 1905, the appellant had a slight accident in his automobile which skidded on a wet pavement and struck the curb stone and jolted him, but he was not thrown out and “he did not feel any effects” from that accident. Two days thereafter as he was getting off a trolley car at the corner of Calvert and Pleasant streets in Baltimore the motorman started forward and he was thrown from the car and his body received a severe twist. He walked up the hill on Pleasant street toward his office, and as he was nearing the top of the hill he felt very severe pains on his left side such as he had never had before in his life.

As soon as he reached his office on Charles street he examined himself and found a swelling at the base of his abdomen about the size of an Elnglish walnut which pained him very badly. He then went to see Dr. Thomas who said it was a rupture and sent him to Dr. Finney who examined him and advised an operation and he went to the Union Protestant Infirmary to be operated upon. Pie there underwent another examination by Dr. Finney assisted by the house surgeon at which it was discovered that he had acute pulmonary tuberculosis of recent development, but he was operated on ³² for the hernia and was thereby confined to the hospital for a little over three weeks. He then promptly, before he had entirely recovered from the operation, went, under his physician’s advice, to a sanitarium in the Adirondacks to be treated for the tuberculosis.

He remained under treatment in the Adirondacks, and neighboring regions resorted to by consumptive patients for that purpose, until November 17th, when he returned to Baltimore and again took up his business. About the middle of April he paid one short visit to Baltimore but promptly returned on his physician’s positive-advice to the .Adirondacks. During the first month of his treatment he remained in the house or on its porch where he was required to remain in order to be in the open air as much as possible. He took his exercise on the porch and he testified that he did not think that he went off of it more than three times in that month and then only to go to see his doctor.

He also described his method of living during the remainder of his treatment in that region. There was other testimony tending to show that between April and November of the time spent by the appellant in the Adirondacks he was never sick enough to necessitate his staying in his house. Before going to the hospital the appellant saw Mr. Steele, the Baltimore' manager of the appellee company, and told him about this claim and that he could not tell when he ruptured himself, whether it was from the automobile or the street car accident. He also told Mr. Steele, after he had gotten out of the hospital, that he was going to the Adirondacks when Steele said “the policy was not good for that,” and called his-attention to the clause in it restricting the cpmpany’s liability to the time during which he was closely confined to the house.

The appellant filled out upon one of the company’s blanks, thereafter sent to him for that purpose by Mr. Steele a detailed statement of his claim which with the attending physician’s-statement was sent to the company on May 1st with a request to be advised if it was not complete and was received by the company without protest or objection. In that claim the ap ³³ pellant stated that he had been suffering from illness which he described as “acute pulmonary tuberculosis and surgical operation for hernia performed by Dr. Finney,” and also gave the other information called for by the company’s blank on which it was made out, but nothing was said as to the cause which produced the hernia. The appellant on cross-examination stated that for five or six years he had a clearing of his throat and during one winter had gone about once a week to Dr. Fleming to have his throat and nostrils sprayed to get rid of it. He had also suffered1 now and then from a cold in the head and had had the grippe-over three or four years before the trial for which he had been treated by Dr. B. B. Brown.

There was also testimony by Dr. Thomas, the appellant’s family physician, that he had a chronic throat condition which is common to nine-tenths of the people in Baltimore -where what is known as a throat climate prevails, and that medical treatment is not ordinarily resorted to for that trouble but that the appellant was rather prone to consulting physicians. The declaration in the case contains three common counts in assumpsit and two special counts on the policy one for the injury received on the street car resulting in the hernia, and the other for the disability resulting from the tuberculosis. To this declaration the defendant company in the first instance filed the general issue pleas and subsequently by leave of Court filed a special plea setting up an alleged breach of warranty on the part of the plaintiff in falsely making the answer to the clause designated “O,” in the application for the policy, inquiring whether he had received any medical or surgical attention during the seven years prior thereto. To this plea the plaintiff demurred and his demurrer was overruled and he joined issue thereon.

There are three bills of exceptions in the record, two to rulings on evidence, and the other to the granting of the defendant’s ' third prayer by which the jury were instructed to render the verdict in its favor on which the judgment appealed from was entered. ³⁴ The first exception was to the Court’s refusal ■ to allow the appellant when on the stand to reply to a question asking-him to state what report he made to Mr. Harrison or to the .company in answer to the clause which follows the letter “O”.,. ■in- the application for the policy, relating to the surgical or medical attendance during the past seven years, except as there follows.. It does not appear from the record what answer the witness would have made to the question nor is there any statement or offer of what the plaintiff proposed to (prove by the witness in that connection and we are therefore ■unable to say whether the plaintiff was injured by the Court’s ruling. . Inasmuch however as the question was a proper one and the case must be remanded for a new trial for error in ■granting the defendants third prayer we will briefly express ;our views upon