John Hancock Mutual Life Insurance v. Adams

Brune, C. J., delivered the opinion of the Court. This is an appeal by a life insurance company from a judgment against it for the face amount of a policy on the life of the husband of the beneficiary, plus interest on that amount, recovered by the beneficiary, who was the plaintiff below and is the appellee here. ■ The principal controversy is over the ruling of the trial court on the defendant insurance company’s demurrer prayers and on its motion for judgment N.O.V. There are also objections to rulings on evidence. The policy was issued on June 9, 1951, the contestable period under it was two years thereafter and the insured died within that period on February 12, 1952. The causes of death were heart failure and uremia, as shown by the proof of death submitted by the beneficiary in making claim under the policy.

The main controversy grows out of the insured’s answers to several questions in the medical portion of the application for the policy, which application formed a part of the contract and was dated May 19, 1951. These questions and answers in brief are as follows: Question 11 D. “Have you ever had or been told that you had, or consulted or been treated by a physician * * * for pain in the chest [or] shortness of breath * * * ?” Answer, “No”. . • ²¹⁷ Question 12. “Have you had any X-Ray, electrocardiac or blood examinations or studies?” Answer, “Yes”. “X-Ray” in the question was underscored and in the space left for “full details” opposite this answer appears, “Routine chest X-rays since 1931. All negative.” Question 13. “Have you, during the past five years, consulted any physician or other practitioner, or been confined to or treated in any hospital, sanatorium, ‘ dispensary, clinic or similar institution not stated in answers to Questions 11 and 12?” Answer, “No.” At the right of the numerous subdivisions of Question 11 and of Questions 12 and 13, in a space headed by instructions calling for “full details” of any of those questions answered “Yes” and calling upon the applicant to specify every illness, injury, deformity or operation with dates, duration, severity, results and the names and addresses of physicians and hospitals, statements (in addition to the report of routine x-rays) showed “Appendectomy 1918. No sequalae.

Tonsilectomy 1920” and a three-stage operation performed in 1941, 1942 and 1943 for the removal of a tumor from the right forearm. The name and address of the surgeon who performed this operation or series of operations was given. The insured had had pains in the chest in February and in October, 1949, and had consulted a physician about them on each of these occasions. On the second occasion, an electrocardiogram was taken.

He also consulted a physician on numerous occasions about various ailments within five years prior to the date of the application and these consultations were not disclosed in the application. The testimony of the insured’s physicians whom he consulted on various occasions during the five-year period indicated that certainly most of his ailments were not of a serious nature. The physician whom the insured consulted about pains in the chest and shortness of breath was Dr. Louis E. Wice. The insured first visited Dr. Wice early in February, 1949, on that occasion informed the doctor ²¹⁸ that he was suffering from “morning cough and expectoration” and that he had been treated for some years by Dr. Serra for a nasal condition and some ringing in his ears.

He complained of several things, including tenseness and sleeping poorly, and also “of some pain in his chest with a'little shortness of breath on exertion.” Dr. Wice prescribed a mild sedative and a drug “used to improve breathing and generally to make a man’s circulatory system improve.” The insured again visited Dr. Wice about two weeks later and in April, 1949. On each of these occasions he seemed better and the treatment formerly prescribed was continued. Twice in February, 1949, Dr. Wice examined the insured under a fluoroscope. In October, 1949, the insured again visited Dr. Wice.

At that time he had a head cold, which had lasted for several days, and he “complained of some pain to the right sternum * * * going through to his back for a few days.” During this visit he was again fluoroscoped and on this occasion an electrocardiogram was also made by Dr. Wice. The result of the electrocardiographic examination was negative, and Dr. Wice’s opinion was that the insured did not have heart trouble. He diagnosed his trouble as a long standing nasal condition with deviated septum and a low grade bronchial condition. The doctor specifically reassumed the insured on the subject of heart trouble and stated that in his opinion the insured did not have it.

He testified the type of pain which the insured had at the time of his October 1949 visit ordinarily would not mean heart trouble. Dr. Wice also testified as to various tests and factors which would be used or taken into consideration in trying to determine whether or not a man had heart trouble. He described an electrocardiogram as the best means, from a mechanical point of view, in determining whether or not there was anything wrong with the heart, but he also pointed out that a negative result was not conclusive. ²¹⁹ The insurance company’s associate medical director, who also testified, agreed with Dr. Wice on this point. His testimony also indicated that if the company had been informed of Dr. Wice’s examination, it would have communicated with him and asked his diagnosis, but that he would not have been content with a diagnosis based on opinion that there was no heart trouble.

He spoke of the experience of his own and other companies with high mortality in heart cases in men over forty as showing the need to be “very careful to get objective evidence of the cause of chest pain other than heart disease” and added, “We do not feel that electrocardiogram, a physical examination, or the opinion of the attending physician is the type of objective information we want to have to establish the health category of such person’s heart.” This prompted a question from the trial judge as to whether the doctor would accept as a risk any applicant who answered “yes” to the question about pain in the chest and shortness of breath. The doctor’s answer indicated that after ten years had passed since an attack “we would assume * * * time would prove that such symptoms did not indicate heart disease.” He further stated that “The taking of electrocardiogram or not taking of it would have made very little difference.” When the insurance company’s local examining physician examined the insured, no signs of heart trouble were noted. There is nothing to indicate that the insured believed he had heart trouble when he applied for the policy, and it appears that he did not have any such belief at that time. His first known heart attack, which was severe, occurred a little over a month after he applied for the policy; and his death occurred about seven months after that attack.

It was due to heart failure and uremia. The rules to determine whether cases of this general type are to be submitted to the jury or decided by the court have recently been reviewed and stated in Baker v. Continental Casualty Co., 201 Md. 464 , 94 A. 2d 454 , ²²⁰ in which the opinion was written by Judge Hammond. Ordinarily and generally, whether a representation is true or false, or material to the risk, is for the jury to determine, and the burden is on the defendant to establish such defenses. Where, however, bad faith or falsity or materiality is, shown by uncontradicted or clear and convincing evidence the question may be one of law.

If there is a conflict in the evidence, or the evidence is doubtful, the question is one for the jury, The Court, in the Baker case, referred to Richards on Insurance Law, 3rd Edition, Section 109, page 146, where the author discussed the difference between a representation and. a warranty. After pointing out that Code (1951) Article 48A, Section 171 equated the two (and so made the quotation pertinent), the Court then quoted this from Richards: “This distinction is better defined in the statement that, if the decisive issue on trial involve an inquiry either as to the substantial truth or as to the materiality of a representation, the right to determine the case is apt to be taken from the Court and carried over to the jury.” The Baker case also reviews many of the Maryland authorities dealing with eases of actual or alleged false answers to medical interrogatories so thoroughly that any extensive review of them in this opinion would be largely repetitious and not particularly helpful. Some cases, such as the Baker case itself, turn upon an exact interpretation of the- question asked. In the Baker case, the submission of the case to the jury was upheld because of the difference between being “treated” by a doctor and being “examined” by a doctor.

The actual inquiry there was whether the applicant had “ever had any injury, sickness or physical condition requiring a doctor’s care or a surgical operation?” His answer was “Yes, tonsillectomy — 1931”, which was inferentially an answer of “No” as to anything else referred to in the question. The fact was that he had been having periodical x-ray examinations because of a lung spot of minimal character, which was discovered ²²¹ as a result of a routine chest x-ray. He was not