Monumental Life Insurance v. Taylor

Prescott, J., delivered the opinion of the Court. This is an appeal by the defendant below, Monumental Life Insurance Company, from a judgment entered on a verdict by a jury in the Circuit Court for Wicomico County in favor of the plaintiff for the sum of eleven thousand, five hundred eighty-six dollars and eighty-five cents ($11,586.85), with interest, after the trial court had overruled the defendant’s motions for judgment n. o. v. and in the alternative for a new trial. The action was brought on a life insurance policy, within the contestable period of said policy, by the appellee, plaintiff below, primary beneficiary, against the defendant to recover the face amount of the policy and the commuted value of the family income benefits provided under the same. At the conclusion of the taking of testimony, the defendant offered proper demurrer prayers that requested directed verdicts in its behalf.

As our decision must be based upon whether the trial court’s rulings were proper, the evidence must be set forth, somewhat in detail, and in the light most favorable to the plaintiff. Mrs. Taylor, the plaintiff, was called and testified: that her husband’s occupation was that of an insurance man; that she and her husband were living in Easton, Maryland, when he took out the policy; that Dr. Palmer was the physician who examined her husband at that time; that proof of death had been furnished the defendant, and demand for the payment of benefits had been made upon it, which was denied; and, the defendant had proffered to refund the premium paid on the policy. Plaintiff also offered the policy of insurance and the certificate and proof of death. In rebuttal plaintiff testified: that prior to the issuance of the policy, the only physicians consulted by her husband, to her knowledge, were Drs.

Mattax, Ellis and Gilmore; that he had discussed with her his visits to Drs. Ellis and Palmer; that she did not know of any Doctors’ having prescribed nitroglycerine for him until after his heart attack in 1955; that if any Doctor had prescribed for her husband, prior to 1954, ²⁰⁶ anything for a heart condition, she did not know anything about it; that her husband had told her the Doctors had given him something for indigestion when he visited Drs. Mattax and Ellis; and, that her husband had told her he told Dr. Palmer of his visit to Dr. Ellis, and he further told her that Dr. Palmer said he could find nothing wrong with him except his nerves. The plaintiff, likewise in rebuttal, offered two letters from Dr. Ellis sent to the defendant, one dated September 21, and the other October 26, 1955.

The first stated in substance: the insured was seen in the Doctor’s office on September 23, 1952, with the complaint of substernal pain which occurred about a year before, and which was first noticed while walking with heavy packages in New York City, which subsided after he rested; that the pain was pressure-like and was associated with slight dyspnea (shortness of breath); that in September of 1952, insured noticed substernal pain and took nitroglycerine with relief; that his blood pressure was 140/105 and on examination of the chest and heart they showed no abnormalities. The remainder of the letter is a detailed and medically termed report of two electrocardiograms taken at about that time. It is unnecessary to repeat the same, because, in the second letter, the Doctor states the electrocardiograms were normal. (Between the dates of the two letters offered as exhibits by the plaintiff, the Doctor had written a third, defendant’s exhibit No. 1, in which he gave his diagnosis (angina pectoris) of the insured as of September 1952, and in his testimony he told the weight to be given a normal recording on an electrocardiogram.

We shall refer to this later.) In the second letter offered by the plaintiff, the Doctor also said there was nothing in his records to indicate he had informed the insured he had a heart condition, nor did the Doctor recall that he had told insured that he had a disease of the heart. (The Doctor testified, when called by a witness for the defendant, he thought he had, and to the best of his recollection he had, so informed the insured, but was not certain.) This constitutes the testimony offered by the plaintiff. The defendant then offered the following testimony, a part of which was disclosed in plaintiff’s exhibit, the insurance ²⁰⁷ policy. On, or about, August 27, 1954, R. Nelson Taylor, Sr. made application to Monumental Life Insurance Company, the appellant in these proceedings, for the issuance of a life insurance policy in the face amount of Five Thousand Dollars ($5,000.00) with a family income rider.

Mr. Taylor was referred to Dr. Palmer, a practicing physician in Easton, Maryland, for the purposes of a medical examination. During the course of said medical examination, Mr. Taylor was asked the following questions by Dr. Palmer, who, in turn, recorded the statements made by Mr. Taylor as indicated: “Question 7. Plave you consulted or been attended by any physician in the past five years ? Answer: No. “Question 8.

Have you ever had or been told that you had or consulted or been treated by a physician or other practitioner for any of the following: (c) Disease of the heart or blood vessels? Answer: No; (d) Pain in the chest, shortness of breath, coronary artery disease or angina pectoris? Answer: No.” After those answers were recorded by Dr. Palmer on the application, it was signed by Mr. Taylor. Following the medical examination and completion of the questionnaire as indicated, the application was duly processed in the usual course of business and Policy No. 391868 in the face amount of Five Thousand Dollars ($5,000.00) with a family income rider was issued to Mr. Taylor with Catherine V. Taylor, the plaintiff in these proceedings, designated as the primary beneficiary.

Thereafter, on September 6, 1955, the insured, Taylor, died, the cause of death as indicated on the death certificate being: “Immediate cause, acute coronary occlusion, interval between onset and death five minutes, antecedent causes, previous coronary sclerosis and infarction, interval between onset and death five months and coronary arteriosclerosis, interval between onset and death three years.” Upon the filing of the proof of death with the appellant company, said company was, for the first time, on notice that the decedent had been suffering with coronary arteriosclerosis for a period considerably prior to the issuance of the policy. ²⁰⁸ During September of 1952, Mr. Taylor called on Dr. Harry Mattax, a general practitioner, practicing in the City of Salisbury, complaining of “intermittent chest pains of a very vague nature”, which he did not describe very accurately. After an examination, Dr. Mattax was of the opinion that the pain was either cardiac in origin or was a cardio spasm and he was not able to definitely determine in his own mind which was the proper diagnosis. Accordingly, he recommended to Mr. Taylor that he visit Dr. Wilbur R. Ellis, who was a specialist in the field of internal medicine and cardiology. A few days later, on September 19, 1952, Mr. Taylor visited the office of Dr.' Ellis.

At the time of the visit, Mr. Taylor advised Dr. Ellis that he had had “chest pains on several occasions” and particularly called attention to a time, approximately a year before in New York City, when he was carrying heavy packages and had developed a chest pain, which caused him to stop walking and upon resting, the pain disappeared. He further advised Dr. Ellis that he was taking nitroglycerine tablets for the relief of this chest pain, which the testimony indicates is a generally accepted remedy normally prescribed for the disease of the heart known as angina pectoris. He also complained of shortness of breath to Dr. Ellis, who made the usual complete examination in cases of this kind, including two electrocardiograms and a ballisto cardiograph, the results of the electrocardiograms were negative, but the ballisto cardiograph showed an abnormality. Following the first visit to Dr. Ellis, Mr. Taylor returned a few days later.

Dr. Ellis, in the meantime, had diagnosed Mr. Taylor’s condition as angina pectoris and upon the second visit, prescribed a drug known as paveril, which according to Dr. EUis’ testimony is prescribed for patients with angina pectoris and hardening of ’the arteries of the heart causing angina. In addition to prescribing paveril, Dr. Ellis directed the patient to reduce his diet to that of 1000 calories per day. The doctor was not certain that he had advised Mr. Taylor of his diagnosis but testified that his best recollection was that he did so advise him of this condition. The doctor further testified that very frequently when a patient has angina pectoris the physical examination and the accessory ²⁰⁹ examinations, including electrocardiograms may show nothing.

When this occurs, the doctor has to be guided by his clinical experience and his impression of the patient in determining the existence of angina pectoris. Both Doctors Ellis and Mattax testified that they were of the opinion, prior to the date of the issuance of the policy, that Mr. Taylor was suffering from angina pectoris, and both further testified that the cause of death was, in their opinion, the direct outgrowth of the condition which Dr. Ellis had first diagnosed in September of 1952. Dr. Palmer testified on cross-examination the insured had answered “yes” to the three following questions: Have you ever had or been told you had, or consulted or been treated by a physician or other practitioner for any of the following: Stomach or Intestinal trouble, Indigestion, Ulcers, Appendicitis, Gall Bladder or Liver disorder, Jaundice, Dysentery or Hernia; have you ever had treatment, examination or surgical operation of any kind in a hospital or sanitarium; and, is there reason for you to undergo, or do you contemplate a surgical operation. As a result of these answers, the doctor made a notation: “1941 * * * bilateral inguinal hernia. 1946 rt. inguinal hernia repaired.

Hope to have the left repaired later”. The doctor further testified the insured had told him that the insured had had some trouble with his stomach. Millard D. Wheeler, Underwriting Supervisor for appellant testified that, had the questions referred to above been answered in the affirmative, the policy would not have been issued without further investigation and inquiry from Dr. Ellis as to his diagnosis and history which he had