Metropolitan Life Insurance v. Jennings

Pattison, J., delivered the opinion of the Court. This is an appeal from a judgment of the Baltimore City Court recovered by the appellee against the appellant company upon a policy of insurance issued by it upon the life of Edward J. . Freeburger, brother of the appellee. The policy, the amount of which was $500, with the appellee named as beneficiary therein, was issued on October 16, 1912, and the insured died on January 10, 1914.

The sole defense made to. this suit was that the insured had induced the appellant company to issue the policy to him by false representations material to the risk. In his written application to the appellant company, the insured stated, among other things, that he was of sound health, that he had never had any disease of the lungs, that the physician who last attended him was Dr. Billingslea, the date of such attendance being twelve years prior to his application, and that his complaint at such time was lumbago; that he had not been under the care of any physician within two years prior to his said application and had “never been under treatment in any dispensary, hospital or asylum, nor been an inmate of any almshouse or other institution.” The application in which these statements are found was by the insurance agreement made part of the policy of insurance; and it was further agreed that said statements were “correct and wholly true” and were to form the basis of the contract of insurance upon the issuance of the policy. hi the proofs of death, which were signed by the plaintiff, the cause of death as given, is pulmonary tuberculosis. The uncontradicted evidence in this case, as disclosed by the record shows, that the insured in the spring of 1911 was suffering from pulmonary tuberculosis; and that on March ⁶²⁴ 29, 1911, he entered the State Sanatorium at S’abillasville and remained there until July 29, 1911, under treatment of Dr. Cullen, superintendent of said institution, and during the whole of said time he suffered from pulmonary tuberculosis. He left that institution to attend the United States District Oourt of Maryland in which Court he had been indicted for the violation of the Oleomargarine Law.

The trial of his case had been postponed at the request of Dr. Cullen, because of the advanced tubercular condition of the insured in the spring of 1911. On June 6th, Dr. Cullen wrote Hon. John Philip Hill, the United States District Attorney, saying: “Mr. Ereeburger has pretty far advanced tuberculosis throughout both lungs, and if it were possible for his case to be postponed until the weather is cooler, it woxild be very much better for him.” He was tried in October, and was convicted and sentenced to thirteen months in the Atlanta Penitentiary. His actual term of imprisonment in that institution commenced on October 16, 1911, and expired on August 16, 1912.

While so imprisoned he was on November 4, 1911, transferred to the tuberculosis canrp within the prison and there he remained until the end of the term of his sentence under the treatment of the prison physician for pulmonary consumption, and while in the camp “he received open air treatment within the tent colony, with appropriate nourishing tuberculosis diet.” Upon his discharge from the Atlanta, prison on August 16, 1912, he returned to Baltimore, and on September 10, following, made and signed the written