Mutual Life Insurance v. Robinson

Burke, J., delivered the opinion of the Court. This is an appeal from a judgment of the Circuit Court for St. Maiy’s county in favor of the appellee upon a policy of life insurance issued by the appellant. The policy was issued on the 13th day of August, 1908, and it insured for one thousand dollars the life of Henry T. Robinson for the benefit of his wife, Mellie B. Robinson, the appellee. Henry T. Robinson, the insured, died of Bright’s disease on the 25th of September, 1909.

The appellant refused to pay, and the appellee brought suit upon the policy. The declaration is in assumpsit. The appellant filed the g'eneral issue plea, and two special pleas. The first special plea alleged that the insured induced the defendant to issue the policy by falsely and fraudulently representing at the time of his ⁴¹⁴ application therefor that he was in good health, when in truth and in fact he was not then, nor when the policy was issued, in good health, but was at those times, as well as for some time prior thereto, afflicted with Bright’s disease, a disease which tends to shorten human life.

The second special plea alleged that the said insured made other false and fraudulent representations in the written application made by him as an inducement to issue the policy, which representations were of matters material to the risk assumed by the defendant in issuing the policy. The premiums appear to have been paid as they fell due during the lifetime of the deceased, and after his death proper proof of death was furnished to the appellant. The sole defense to the suit was that the insured had induced the appellant to issue the policy by false ■ and fraudulent representations material to the risk, and these false and fraudulent representations, relied upon to avoid the policy, are those set out in the first special plea. At the trial, of the case, the plaintiff offered in evidence the policy of the insured, proof of death, and the original application for insurance.

The application was made to the appellant company and signed by the insured on August 12th, 1908, and it is therein stated that “all the following statements and answers and all those that I make to the company’s medical examiner in continuation are true and offered to the company as an inducement to issue the proposed policy, which I hereby agree to accept, and which shall not take effect unless and until the fir-st premium shall have been paid during my continuance in good health, and unless also the policy shall have been issued during my continuance in good health, except in case a binding receipt shall have been issued as hereinafter provided”. . In answer to a question put to him by the medical examiner, the insured'Stated that he was in good health. The following condition appears in the policy of insurance: “All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement of the ⁴¹⁵ insured shall avoid' or he used in defense to a claim under this policy unless contained in the written application here-for. a copy of which is erdvrsed hereon or attached hereto.” In order to dispose of the legal questions presented by the appeal it will be necessary to give an outline of the substantial facts appearing in the record. The plaintiff testified that she was the widow of ITemy T. Robinson, the insured, and the beneficiary mentioned in the policy; that she had been married to her husband for about fifteen years at the time of his death; that he died on September 25rh, 1909; and that she had never been paid as such beneficiary, although proof of death had been duly forwarded to the defendant and demand for payment made.

She testified that her husband had died of Bright’s disease; that he had been ill four or five months immediately preceding the date of his death;-that the immediate cause of death was heart disease, and that she did not know her husband had Bright’s disease until she was told by the doctor who so certified in the proof of death. John S. Jones testified that he was the solicitor or agent of the defendant on August 13th, 1908; that he knew Henry T. Robinson, and solicited him to have his life insured and prepared him an application for insurance. He identified the application offered in evidence as the one prepared by him and forwarded to the company, except that certain writing thereon whereby it appeared that some person or officer of the defendant company had requested the issuing of an endowment policy for $1,000 instead of an ordinary life policy for two íhousaud dolíais for which the application had been made, and not upon the application when forwarded ; that about one month after the application had been sent in, the company cent him the policy, and he found that it was an endowment policy for $1,000 for fifteen years instead of an ordinary life policy for two thousand dollars fin which Robinson had applied; that Robinson had at first refused to accept the policy, stating that it was not such a policy as he applied for; but that about two weeks thereafter, ⁴¹⁶ .upon the advice of the witness, Robinson determined to accept the policy as sent, and so notified the witness, who delivered the policy to him. The plaintiff then closed her case.

The defendant then introduced in evidence the application for insurance made by Robinson for the purpose of showing the answers and statements of the insured as to diseases and sicknesses he had prior to the date of his application on the 13th of August, 1908, and as to the condition of his health at that time. It then called Doctor Thomas Lynch, a physician of St. Mary’s county, who testified that about the middle of. January, 1908, Henry T. Robinson had spoke to him and asked him for medicine, stating that he was suffering from asthma; that he stated he could not sleep; that at that time he thought Robinson had Bright’s disease or valvular heart trouble, and that he gave him digitallis, and told him to come over to witnesses’ office later: He fur- ■ ther testified “that Robinson came over in about two weeks thereafter, and witness examined Robinson’s urine and tested it, and found it loaded with albumen. That his diagnosis showed that Robinson had Bright’s disease, complicated with heart trouble, a complication almost always existing in Bright’s disease.

That he gave him a certain drug, and he got a little better. Robinson showed him a hottle of medicine he had been taking. He saw Robinson at intervals until in November, 1908, Robinson coming to see him at his office at Leonardtown every time Robinson came to town, when he would prescribe for him, and at Robinson’s request would examine his urine, and at every such, examination showed albumen; that he knew Robinson had a case of Bright’s disease, which must prove fatal, and that he knew he must die within a few years, although there had been cases of this disease through which the patient had lived for fifteen years.” He further testified that he told the plaintiff some four or five months after he began prescribing for her husband, that he had a complication of Bright’s disease and heart trouble, of which he would certainly die; that he told her this prior to August 13th, 1908, at Lawrences Hotel, ⁴¹⁷ in Leonardstown. He stated that he did not tell Robinson that he had Bright’s disease, and that he never told any of his patients when they had a disease which he knew would necessarily prove fatal, because upon most persons such information would have a had effect; that on one occasion Robinson asked him if he would pass him for life insurance, and that he replied he could not pass a sick man, and advised him to go home and get well first.

He stated that after this conversation, John S. Jones, the agent of the appellant, asked if he would pass Robinson for life insurance, and that he told Jones that he could not do so because Robinson was a sick man; that neither he, nor anyone else could cure him, and that Jones stated that he would get a doctor who would pass him for life insurance. On cross-examination he stated that he told Robinson that he did not have Bright’s disease, and that he also told him, in the presence of Mrs. Robinson and a Mrs. Graves about August 16th, 1908, that he saw no reasons why he would not pass for life insurance. He admitted that he was a drinking man, and at times drank to excess. Bruce Mattingly testified that he had known Robinson since June, 1908, and that he appeared to him at that time to he in good health; hut that he had heard Robinson sometime in the year 1908 complain of having heart trouble, and had also heard him complain of not being able to sleep, hut he thought that was in the year 1909.

Frederick Wathen testified that he had known Robinson, since he was a hoy; that he thought he was in had health for a time about a year before he died; that he had heard him complain of not being able to sleep, and of shortness of breath when he took exercise; hut that he appeared to him to be in good health. Doctor L. B. Johnson attended the insured in his last illness. He first prescribed for him in the fall of 1908. In February, 1909, Robinson called on him, and he found that he had' a well-advanced case of Bright’s disease, and from the condition of his kidneys in February, 1909, the ⁴¹⁸ doctor stated that this disease probably was of long standing.

He bad described for Eobinson prior to January, 1908, for insomnia, a trouble wbieb the insured disclosed to the medical examiner. In rebuttal the plaintiff called Dr. Joseph O. King, who testified that be was the examining