Baer v. State Life Insurance , 256 Pa. 177 ( 1917 )

Opinion by

Mr. Justice Potter,

In this action of assumpsit the plaintiff sought to recover the amount of a policy of insurance upon the life of her husband. Payment was refused on the ground that the insured had made false representations in his application, as to his state of health, and as to the time when he had last consulted a physician. The answers alleged to be untrue are contained in the medical examiner’s report, which was filled out by the examiner and signed by the applicant. It was stipulated that these statements were part of the consideration for which the policy was issued, and it was also agreed that the policy should not take effect unless the insured was in good health when the first premium was paid. At the trial, a request by defendant for binding instructions was refused, and the case was submitted to the jury, who found a verdict for plaintiff for the full amount of the policy, with interest. Prom the judgment thereon entered, defendant has appealed, and its counsel now contend that the case should not have been submitted to the jury, but that, under the evidence, the court should have disposed of it as matter of law. It appears from the record, that, in answering a question put to him when he made his application, the insured said he was then in perfect health, so far as he knew or believed. Medical opinion evidence.was offered at the trial, which tended to show that he could hardly have been in perfect health when he applied for the policy on July 18, 1913, but, if that was the case, there was no evidence that he knew it, or had reason to believe that he was then diseased. His attending physician, who was also his next-door neighbor and saw him almost daily, testified that he did not suspect anything serious in his condition until the day before Labor Day, 1913. Defendant’s medical examiner, who examined him and tested his urine on the same day on which the answer was made, reported confidentially to the company that he found the applicant in the best of health. He also certified that he considered the applicant a first-class risk, and recommended that the policy be issued. The wife of the insured and seven of his neighbors and acquaintances testified that he appeared to be in good health during the spring and summer of 1913, and was able to attend to his business and did not lose a day from his store on account of sickness. Under this testimony, it was for the jury to-say whether, when the insured made his application and paid his premium, he either knew or had reason to believe that he was not in good health. The representation was not absolute, but was made only in so far as the insured knew or believed. Whether or not he was in good health when the first premium was paid and accepted, as required by the stipulation, was also, under the evidence, clearly a question for the jury. “The term ‘good health’ does not mean absolute perfection, but is comparative. The insured need not be entirely free from infirmity or from all the ills to which flesh is heir...... Slight troubles, temporary and light illness, infrequent and light attacks of sickness, not of such a character as to produce bodily infirmity or serious impairment or derangement of vital organs, dp not disprove the warranty of good health. In other words, the term ‘good health,5 when used in a policy of life insurance, means that the applicant has no grave, important or serious disease, and is free from any ailment that seriously affects the general soundness and healthfulness of the. system”: Barnes v. Fidelity Mut. Life Assn., 191 Pa. 618. In the case at bar a physician testified that the condition of insured, which he found existing on September 8th, indicated an advanced stage of Bright’s disease, which, in his opinion, could not have developed and progressed that far within the period since the date of the application. But this testimony was oral and its effect and weight as contrasted with the statements of the applicant were for the jury, as was the truthfulness of the insured’s statement that he had never had “severe, protracted or frequent headaches.” We do not understand that appellant presses the point of misrepresentation as to the answer to question 24 in the medical examiner’s report. That query was, “Have you consulted a physician within the past two years for anything, trivial or otherwise, not mentioned above?” Insured answered, “No.” The evidence showed that he had consulted Dr. Schuster, who was his family physician and next-door neighbor, a number of times preceding Labor Day, 1913, with reference to headaches and indigestion. But the dates of these consultations were not fixed. The complaint of appellant is chiefly with respect to questions 24a, 24b and 24c. Of these, 24a, “When did you last consult a physician?” was not answered. This 'was probably the fault of the medical examiner, who wrote down the answers and filled the blank. At any rate, simple failure to answer the question was not misrepresentation. Question 24b “For what?” was answered “Appendicitis.” Counsel for appellant argue that this answer is untrue, because the testimony of Dr. Schuster shows that since he had appendicitis, the insured had consulted him for headaches and indigestion. But Dr. Schuster’s testimony was not clear as to just when those consultations occurred, and it, therefore, became a question for the jury to determine whether they were before the date of the application; in any event, the credibility of the witness Avas for the jury.

The trial judge held there was an ambiguity in questions 24, 24a, b and c, in that it Avas not clear whether they referred to an attending physician or a consulting physician, and he left it to the jury to say Avhether the applicant might not have understood them in the latter sense. If so, his answers to both 24b and 24c, “Names and addresses of consulting physicians?” were not untrue. In his attack of appendicitis, Dr. Swope was the consulting physician, or perhaps more correctly the surgeon. Question 24c refers in terms to a “consulting” physician, that is, one called by the attending physician in consultation, not to one whom the patient had consulted. As the applicant had already answered that his attending physician was Dr. Schuster, he may have taken the subsequent inquiry to refer, not to the same person, but to a consulting physician in the ordinary use of the term. Reference to the facsimile of a portion of the report inserted at the end of the appellant’s paper book shows that the medical examiner had first Avritten the name of Dr. Swope as the attending physician of the applicant, had then erased it and written over the erasure “Dr. A. R. Suster” (meaning Schuster), and had then put down Dr. Swope’s name as applicant’s consulting physician. This change indicates that both the applicant and the medical examiner interpreted the questions in the manner the jury has found they might reasonably have done. The distinction does not seem to be of any great practical importance, for the applicant gave the names of both physicians, and the defendant company could have made inquiry of each of them for particulars, had it seen fit to do so. The evidence does not show that the insured had consulted any physician other than the two named, within the period covered by the scope of the inquiry. Such a paper is, of course, to be construed most strongly ^against the party by whom it is prepared, and by whose medical officer the answers to the questions are taken and written into the blanks left for that purpose. The policy provides that the statements of the assured, in the absence of fraud, are to be deemed representations and not warranties. In the late case of Suravitz v. Prudential Ins. Co., 244 Pa. 582, the subject of representations in policies of life insurance was fully considered. It was there said (p. 587) : “The cases afe not in entire harmony, but a fair reading of them will show a tendency to broaden the scope of inquiry into questions relating to the materiality, correctness and truthfulness of answers, and the good faith of the applicant in making them, when suit is brought upon a policy containing a covenant that the statements of the insured shall be deemed representations and not warranties.” That decision was expressly followed in Oplinger v. New York Life Ins. Co., 253 Pa. 328. We are clear that the trial judge could not properly have taken this case from the jury, and the assignments in which it is alleged that he erred in refusing to do so, must be dismissed.

Complaint is made in the seventh assignment of the affirmance of plaintiff’s fifth point, in which the jury were instructed that, if made in good faith, a misrepresentation by the insured, as to consultations with Dr. Schuster at times other than those mentioned in the application, would not avoid the policy, unless the misrepresentation was a material one. The point was obscure and difficult to understand, and counsel should have been required to restate and simplify the request. It is dangerous to affirm a point which is not clear to the court, for to the jury it would present even more difficulty. We do not, however, feel that the submission of the point as presented amounted to reversible error. The instruction requested was intended to aid the jury in determining the materiality of the representation, if they found it to have been made in good faith. Under the doctrine of Suravitz v. Ins. Co., supra, the question was properly for the consideration of the jury.

In a number of other assignments error is alleged in the admission of evidence of acquaintances that the insured was apparently in good health, and was able to attend to his business during the spring and summer of 1913. As one of the questions to be determined by the jury was whether the insured was in good health, so far as he knew or believed, when he made his application, it was competent, as having some bearing upon his own good faith and credibility, to show by witnesses, who saw him about that time, that, to ordinary observation, and to all outward appearance, he was in good health.

There is no merit in the fifteenth assignment, which alleges error in admitting, against objection, plaintiff’s testimony that at the time she signed the proofs of death, she had a nervous breakdown, and did not examine the papers for the purpose of correcting errors therein. Whether she did so or not, is immaterial, as there is no controversy as to the statements contained in the proofs of death.

The assignments of error are all overruled, and the judgment is affirmed.