Mutual Life Insurance v. Rain

Worthington, J., delivered the opinion of the Court. This is a suit upon a. policy of life insurance issued by the appellant to the appellee upon the life of appellee’s daughter, Rose Rain. The policy is dated June 24th, 1905, and the death of the insured occurred on December 13th, 1906. The amount of the insurance was $180, and the weekly premium of ten cents was paid regularly, for about seventy-five weeks, until the insured’s death.

The “substantial defense” to the claim of the beneficiary for the amount of the insurance, is that at the time of the issuance of the policy, the insured had consumption of the lungs, of which it is contended, she subsequently died. In support of this defense the appellant refers to the following provision contained in the policy of insurance: “Provided, however, that no obligation is assumed by this company, unless at the date of the actual delivery of this policy, the in ³⁵⁵ sured is in sound health;” and also to the evidence of Dr. Lilly, a witness for appellant who testified that in April, 1905, he made an examination of the insured’s sputum and found therein the germs of tuberculosis. It appears from the evidence in the case that Dr. Lilly first attended the insured on February 15th, 1905, at the Northeastern Dispensary in Baltimore, that subsequently, in April of the same year, he examined her sputum, and that he attended her but two or three times thereafter until her death in December, 1906. The manner in which the examination of the sputa was made, does not appear, and the only evidence in the case to prove that the doctor was possessed of the requisite knowledge and skill to make a scientific and accurate examination was that he had graduated from the Maryland University some six years before, and had been practicing medicine for that length of time.

He admitted on cross-examination that in his profession a good many mistakes were made, and though he denied that he had told the mother of the insured that the young woman had died of inflammation of the stomach, the mother swore most positively that he did so inform her, and that he never mentioned anything about her daughter having consumption. The mother also testified that the doctor told her that if he had known her daughter’s life was insured he would not have certified that she died of tuberculosis ptdmonalis but “would have made it something different.” The doctor was present in the ’Court room at the time, it would seem, and yet did not go upon the stand and deny this statement. We think that the statements and answers of the beneficiary in her application for the insurance on the life of her daughter were made warranties by the terms of the policy as well as by the application. (Mutual Life v. Thomas, 101 Md. 501 ), subject to the provisions of the Code (1906), Art. 23, sec. 196.

We also affirm what was said by this Court in the case of Mutual Life v. Mullen, 107 Md. 457 , to the effect that when ³⁵⁶ ever the statements and answers in the application are shown to be false by clear, convincing and uncontradicted evidence the Court may so rule as a matter of law. But in this cáse we do not think their falsity