Marshall v. Metropolitan Life Insurance

Mr. Justice Tuohy

delivered the opinion of the court.

Plaintiff Annabell Marshall, as beneficiary, sued defendant to recover on two policies of life insurance issued by defendant on the life of Frank H. Marshall, plaintiff’s deceased husband. -From a superior court judgment for $8,900 on a verdict, defendant appeals.

The first policy, dated March 3,1944, was in the sum of $6,000, and the second, dated March 20, 1944, was in the sum of $2,000. The insured died on February 4, 1946, within the contestable period.

The company defends on the ground that both policies were avoided by material misrepresentations made in answer to certain questions in the written application for insurance. The questions and answers are:

Question No. 11 (b): “Have you ever had any ailment or disease of the Heart or Lungs 1”

Answer: “No.”

Question No. 12 (g): “Have you consulted a physician for any ailment or disease not included in your above answers'?”

Answer: “Yes. Influenza — three or four days, January, 1940 — mild—Good results. Dr. *?”

Question No. 13: “What clinics, hospitals, physicians, healers or other practitioners, if any, not named above, have you consulted or been treated by, within the past five years'? If none, so state.”

Answer: “None.”

On December 30, 1943, Marshall was attended in his home for an illness, the symptoms of which were nausea and vomiting. Between the third day of March 1944, when the application was made, and the 22nd day of March, when the first policy was delivered and the second policy ordered, Marshall suffered an illness which was diagnosed as heart disease. Although no formal application was made for the second policy, upon its delivery, April 4, 1944, the insured signed a document designated an “Application Amendment.”

As to the first policy, plaintiff maintains that whether or not the failure to disclose the illness of December 30 and the statement that he had not been treated by a doctor within the past five years materially increased the hazard insured against, was, under all the facts and circumstances, a question for the jury to determine, and that by their verdict they determined the question in accordance with plaintiff’s contention. Defendant contends that the illness of December 30 was a gall bladder attack; that, as such, the undisputed testimony proved it was material to the risk, and that the failure to disclose the condition in answer to question No. 12 (g) and the positive statement by Mr. Marshall that he had not seen a physician in the past five years, in answer to question No. 13, was a material misrepresentation sufficient to avoid the policy as a matter of law.

As to the second policy, plaintiff maintains that its issuance was not preceded by an application and that no misrepresentations of any kind were made with reference to it. Defendant contends that there was, in effeet, a renewal of the questions and answers of the original application by virtue of the “Application Amendment,” and that being so, not only questions Nos. 12 (g) and 13, but question No. 11 (b) was also falsely answered, because of the heart condition discovered after the signing of the application, but before the execution of the amendment. Defendant also complains of errors in instructions given to the jury on behalf of plaintiff.

In view of the questions raised, it is necessary to consider the evidence at some length. Frank Marshall and an associate in the beer business spent the early evening of December 30 drinking together, after which they had dinner. During the night Marshall complained of being ill to his stomach, vomited several times, and in the morning Dr. H. Hoyt Cox was called to the home to attend him. Dr. Cox had never seen Mr. Marshall before this occasion and never saw him again; at the trial he did not remember what he did in making the examination, but he left a prescription to be filled. The next day Mrs. Marshall called Dr. Cox and told him that Mr. Marshall was all right. It also appears that Craig Dennison, Mr. Marshall’s companion on the party of the night before, was also taken ill during the night with a stomach complaint similar to that suffered by Marshall. It does not appear that Marshall ever again had a recurrence of this type of illness.

The evidence of gall bladder attack, upon which the defendant relies, appears in the testimony of Dr. Cox, who produced an office record showing a call upon Frank Marshall on December 30 and containing the notation “gall bladder attack.” This card was permitted to go into evidence without objection, although the doctor specifically stated that he had no independent recollection of the call on Mr. Marshall and that the card did not refresh his recollection as to the call. Upon cross-examination the doctor stated that he had never seen Mr. Marshall before the night in question; that the words “gall bladder attack” on his record were not written by him, but by his nurse or secretary; that he did not know what he did in making the examination; that he does not remember whether Mr. Marshall was Vomiting; that he had no recollection of this case; that that night’s call was the last he heard of him. He says, “But so far as this man was concerned, I have no recollection of this case. As to whether there was any reason why I didn’t go back after diagnosing this as a gall bladder attack, I have no recollection of this case whatsoever. I told you that. As to whether I prescribed for him, unquestionably I did. As to whether I remember what I gave him, I have no recollection of this case whatsoever.” If this card is to be taken as proof of a definite diagnosis of gall bladder attack, then plaintiff has been deprived of her right of cross-examination, because the doctor who is alleged to have made the diagnosis of gall bladder attack, when produced on the witness stand, was unable to substantiate the record by any recollection whatsoever of the occurrence. If it were the doctor’s opinion at the time that he took the stand that Marshall had suffered this attack, then the plaintiff was entitled to cross-examine him fully as to the findings and the reasons that entered into the diagnosis. This the plaintiff was unable to do by virtue of the doctor’s position that he had no recollection whatsoever of the transaction. Under these circumstances, we attach no probative value to this card, particularly where the report was so clearly incompetent as evidence. Where a witness can testify that a private report or document made by him at the time of the occurrence refreshes his recollection, the document or report may only be used for that purpose, and is not otherwise admissible in evidence. Village of Broadview v. Dianish, 335 Ill. 299; People v. Zalimas, 319 Ill. 186.

Defendant argues that the prescription which the doctor supplied was that which he customarily used for gall bladder attacks. The ingredients of this prescription might have been used for many illnesses other than gall bladder, and while it might have been corroborative had the doctor testified positively to a diagnosis of gall bladder attack, in the absence of underlying proof we do not feel the circumstance lends any support to defendant’s contentions.

Defendant argues that “the issue here is not whether the insured had a gall bladder attack,” but that “the policies are both avoided because the insured denied consultation with and treatment by Dr. Cox only nine weeks before the date of the application,” and-that “this misrepresentation was shown to be material as a matter of law.” The issue, as we view it; is whether or not the insured suffered, prior to submitting his application for insurance, from an illness, by whatsoever medical name it may be called, of such severity that a misrepresentation concerning it materially affected the risk. It was properly within the province óf the ■ jury to determine to what extent it materially affected the risk, especially in the light of the testimony of Dr. Cox, defendant’s witness, who stated that a gall bladder attack is one that is acute and sudden, one of those things that comes on suddenly and then passes away after proper remedies, and that it is not something that is damaging to the constitution. Defendant says that the misrepresentation was material to the risk and was so proved as a matter of law because the undisputed testimony of three doctors was to the effect that the illness suffered by Marshall on December 30 was material to the risk. However, these doctors were testifying to a hypothetical case based upon a diagnosis of gall bladder attack. If there wás nó gall bladder attack, then there is no testimony in this case on behalf of defendant that there was any illness material to the risk. The rule as to whether pr not the misrepresentations contained in an application are material to the risk is stated as follows in Hancock v. National Council Knights & Ladies of Security, 303 Ill. 66, at page 71: “Whether statements of an application made as incidental and inducement to a contract are material may be the subject of evidence and raise questions of fact unless they are of such a nature that all persons would agree that they are or are not material. Whether a representation is material is determined by the question whether reasonably careful and intelligent men would have regarded the fact stated as substantially increasing the chances of the event insured against, so as to cause a rejection of the application or different conditions.” It would seem to us, therefore, that the question of whether or not the illness from which Marshall suffered on December 30 materially affected the risk was an ultimate question of fact for the jury to decide. We believe that the question was properly submitted to the jury and we are not disposed to interfere with their verdict.

The case at bar is materially different on the facts from the cases relied on by defendant. In the case of Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571, three life insurance policies which issued on successive dates were involved, the first one being for $1,500, the second for $8,500, and the third for $5,000. There was a jury verdict for $1,500 on the first policy. The trial court entered a judgment notwithstanding the verdict for an additional $5,000 which was reversed by the Appellate Court, and the judgment of the Appellate Court was affirmed by the Supreme Court. It is significant that the $1,500 verdict was permitted to stand. The $1,500 policy was issued upon a representation that the plaintiff had not been attended by a physician within the last five years, although he had prior to that time and within the five year period suffered a dizzy spell while playing handball, complained of chest pains and consulted a doctor. The second policy was issued upon the same representation, although between the dates of the issuance of the first and second policies Weinstein had been a patient at the Mayo Clinic at Rochester, Minnesota, where his condition was diagnosed as duodenal ulcer and infected tonsils, and was later seen by a doctor in Chicago. The third policy was issued upon the same representations, although between the dates of the issuance of the second and third policies, he had undergone an operation for tonsillitis and had seen several doctors. He died on April 1,1938 of angina pectoris. In the Weinstein case the jury’s verdict as to $1,500 was affirmed, notwithstanding the fact that Weinstein had testified that he had not consulted any physician for the prior five years when as a matter of fact he had. Apparently the jury considered this ailment so inconsequential as not to have materially increased the risk, and the courts affirmed the verdict. As to the two subsequent applications wherein false representations appeared, these representations were made after lengthy hospitalization and a positive diagnosis of duodenal ulcer and an operation for tonsillitis. In the instant case there was no definite proof of a gall bladder attack, the only proof bearing on the subject being that a doctor had been called to treat an ailment the nature of which, from all the facts in the record, is very uncertain. The jury in the instant case apparently considered, as did the jury in the Weinstein case, that the illness was not of sufficient importance as to materially increase the risk.

We have examined the other cases cited where the questions of doctors’ attendance and hospitalization were misrepresented, and in each of these cases find that there was positive evidence of a serious, and in most cases incurable, disease. In Western & Southern Life Ins. Co. v. Tomasun, 358 Ill. 496, the insured had been treated for cancer within the five year period, had been hospitalized for weeks, and had undergone a major operation for cancer of the cervix of the uterus, with metastasis (spreading) to the bowel and bladder, six months before the application for insurance. In Continental Assur. Co. v. McCarty, 302 Ill. App. 10, the insured had been suffering for three years from chronic nephritis (kidney trouble) with hypertension (high hloo.d pressure), and had been treated by three different physicians for the disease. In Krajewski v. Prudential Ins. Co., 305 Ill. App. 64, the insured had been hospitalized for treatment of cancer, and upon his discharge was suffering from cancer lesions in his spinal cord, with evidence of disfunction of the legs due to lesions. In Traut v. Pacific Mut. Life Ins. Co., 321 Ill. App. 374, the insured had suffered from an injury or disease to his legs which caused his weight to drop from 175 pounds to 150 pounds in a year; was under the care of four different doctors, one for nine months; was confined to a hospital; and had suffered for years from sciatica, diagnosed as sciatic neuritis. In Hamberg v. Mutual Life Ins. Co. of New York, 322 Ill. App. 138, the insured was suffering from pronounced symptoms of heart disease. In Cox v. Equitable Life Assur. Society of United States, 333 Ill. App. 207, the insured had been operated on and his gall bladder removed, was subsequently treated for disease of the pancreas, and had an enlarged liver for which he received hospital treatment.

On the question of the second policy the following facts appear: The first policy was delivered to the plaintiff on March 22, 1944. At that time the agent who delivered the policy produced a second policy which was in the amount of $5,000. This policy had not been applied for and there had been no conversation with reference to-it between the company’s agent and Marshall until it was presented to the insured on March 22. He refused to take the additional $5,000 (notwithstanding the fact that he was then aware of the heart condition), but after some discussion with the agent agreed to take $2,000 of the amount. The agent’s testimony on this score is as follows: “Well, the fact remains that I had the $5,000 policy and I wanted Mr. Marshall to take the additional five which he refused. Then I compromised with him, asked him if he would consider taking some part of it'and he agreed to take the $2,000. He didn’t sign any new application. There is no need for a new application to be signed when a policy is done. Just send the old policy back and ask the company to change the amount of the insurance to what we see fit or the applicant decides to take. He originally had signed an application. ’ ’

Later, on April 4, the $2,000 policy, which was issued on the basis of the original application, was delivered to the insured, and at the time of the delivery the insured signed a document termed “Application Amendment” on the printed form of the insurance company, which, after identifying the policy and the insured, stated:

“To the Metropolitan Life Insurance Company:

The undersigned hereby amends the application for Life insurance made to your Company on the date stated above; to make it the application for the above numbered policy on the Whole Life Paid Up at Age 85 plan with Disability Waiver and War-Aviation Prov. in the amount of $2,000 ivithout affecting its use as the application for Policy No. 14 977 598A.

These amendments and declarations are to be considered as a part of the said application and subject to the agreements, covenants, and statements therein contained. The said application, together with these amendments, is to be considered as the basis of and as a part of the contract of insurance. The said application, as amended, is correct and true, and I hereby ratify and confirm the statements therein made as of the date hereof.

Signed and dated at Chicago this 4 day of April, 1944.”

In the interim between the making of the application for the $6,000 policy and the delivery of the $2,000 policy, Marshall had been attended by several doctors and pronounced to be suffering from a heart condition diagnosed as coronary thrombosis. Plaintiff offered to prove that at the time the $2,000 policy was ordered* Marshall advised the agent of the insurer who solicited the policy of this fact. Objection was made by the defendant to this offer of proof, and for reasons not clear to us the objection was sustained.

It is the position of the insurance company that the language of the above amendment of the insured’s original application is clear, certain and unambiguous, and susceptible of only one meaning. In their brief they say: “Applying to the words their ordinary meaning, Mr. Marshall was telling the company that the statements he made in his application of March 3rd (and which on that date he had certified to be full, true and complete) are still full, true and complete as of April 4th. ” It is the contention of the plaintiff that Marshall was ratifying and confirming as of April 4 the answers he gave on March 3. He was again stating as of the latter date that they were true and correct when given.

That the insurance company intended by this so-called “Application Amendment” to procure from the insured representations as to his condition of health on the date of delivery of the insurance policy may well be the fact, but if the language of the insurance policy is susceptible to two interpretations, the question of intention is not germane, and that interpretation which will not defeat the insured’s claim will be adopted. Hancock v. National Council Knights Ladies of Security, supra.

No new application was submitted as a basis for the issuance of the second policy. The company could by appropriate language have requested the insured to represent that his physical condition was the same on the date of the delivery of the second policy as it was at the time the original application was made; or that no change had occurred in his physical condition in the interim which would cause him to answer any of ‘the questions differently on April 4 than he did on March 3. The controverted form contains no such certain language. It says, substantially, that the application on which the first policy was issued is amended to make it the application for the second policy, without affecting its use as the application for the first policy. The insured then represents that “the said application, as amended, is correct and true, and I hereby ratify and confirm the statements therein made as of the date hereof. ’ ’ The insured layman was entitled to conclude from this language that he was ratifying and confirming something that he had said on a prior occasion. He did not state or necessarily imply that all which had been said on the prior occasion continued to be true and was true on the later date. In Webster’s dictionary, the primary meaning given to the word “ratify” is “to confirm.” In its clearest connotation, “ratify” means to “confirm” or “approve” of something that has already leen said or done. The same dictionary gives as a primary definition of the word “confirm” to “make firm or firmer”; “to strengthen.” The insured was entitled to believe, considering these words their ordinary lay meaning, that he was making firm or firmer ly repetition the questions and answers which he had made on the prior occasion.

We think the language of the “Application Amendment” ambiguous and susceptible of more than one interpretation, and it is our opinion that there was no representation made on April 4 that the insured’s physical condition was the same as it was on the earlier date, nor that he had seen no doctors or suffered no disability in the interim between the date that the application was made and the so-called “amendment” was signed.

Defendant complains of the submission to the jury of four instructions numbered P-1, P-2, P-3, and P-4. The error complained of in each of the instructions is that they in effect inform the jury that the burden in the instant ease was upon the insurance company to prove by a preponderance or greater weight of all the evidence that Marshall made false statements of fact and that at the time such statements were made Marshall knew the same to be false. The position of the defendant is that if the representations were material to the risk and relied upon by the company, it is immaterial whether or not the insured knew the misrepresentations to be false. It is unnecessary to consider the question of whether or not scienter is a necessary element' for the insurer to prove for the reason that the pleadings in this case were predicated upon the theory that it was. In its answer, wherein the affirmative defenses are set forth, defendant, in paragraph eight thereof, after setting forth the questions and answers which were allegedly untruthfully answered, states, ‘ ‘ and defendant further states that the answers to the questions as above set forth are untrue and false and were known by the said Frank H. Marshall to be untrue and false, and that the said Frank H. Marshall made the following certification to the questions aforesaid” etc. The instructions were based upon the issues as formed by the pleadings in this case, and it is elementary that the defendant is bound by the theory upon which it pleads and tries its case.

For the foregoing reasons the judgment of the superior court of Cook county is affirmed.

Affirmed.

Feihberg, P. J., concurs.