Arnold v. Metropolitan Life Ins. Co.

• Decision Date: 21 April 1902
• Docket Number: 30-1902
• Citation: 20 Pa.Super. 61
• Parties: Arnold v. Metropolitan Life Insurance Company, Appellant
• Court: Pennsylvania Superior Court

20 Pa.Super. 61

Arnold v. Metropolitan Life Insurance Company, Appellant

No. 30-1902

Superior Court of Pennsylvania

April 21, 1902

Argued March 11, 1902 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Mifflin Co., Aug. T., 1900, No. 117, on verdict for plaintiff, in case of Daniel J. Arnold v. Metropolitan Life Insurance Company.

Assumpsit upon a policy of life insurance. Before Bailey, P. J.

From the record it appeared that the policy in suit was issued on the life of George Arnold in favor of his son, the plaintiff, Daniel J. Arnold. The policy was dated May 27, 1899. F. W. Glacier, a witness for the defendant testified that in the summer of 1899, he had a conversation with George Arnold, and that the latter had told him that " he had been doctoring for over one year." The witness stated that he knew that it was with George Arnold with whom he had the conversation, because he was told so at the time by Mrs. Kitting, mother-in-law of the plaintiff.

The insured stated in his application that he had never had " disease of liver . . . . spitting or raising blood." Two physicians testified that they had treated the insured for liver trouble shortly before the date of the policy, and one of them testified that the insured had consulted him in reference to the spitting of blood.

The court charged in part as follows:

The defendant does not allege, nor has it offered any testimony to show, that the assured had any of the diseases mentioned in this paragraph except disease of the liver, and that he spit blood. What is the evidence on these questions? Dr. Reber testifies that in February or March, 1899, prior to making the application, the assured came to his office and complained about his liver and had a " sore stomach" and in December, 1899, he treated him for enlarged liver. One or two weeks after the assured had his ribs broken by falling off a roof the assured told him he spit up some blood. Dr. Baker said he had prescribed for George Arnold between the 17th and the 20th of April, 1899; he did not say what he treated him for, but to the best of his recollection for stomach and liver trouble. [Mr. Glacier said some man, whom he did not know but whom he was told was the assured, told him that he was doctoring for over a year. There is no evidence that the person with whom he was talking was George Arnold, the assured, therefore his evidence is of no value.]

There is no warranty that the deceased had no disease of stomach and the parties have not made such disease material to this risk, and we cannot declare the policy void as a matter of law even if the assured had such disease prior to making this application. We do not recall any evidence which tends to show that the liver trouble for which Drs. Reber and Baker prescribed was a permanent disease of that organ, or such a complaint which would affect the general health of the assured.

[It seems to me that the mere temporary derangement of the liver or stomach could not have been understood by either party to this contract as a " disease" of those organs. There is no evidence that their derangements did not readily yield to the usual remedies prescribed for such disorders, or that they were other than such ordinary derangements of these organs which a very large number of the people residing in this climate are subject to. We, however, submit the question to you whether the testimony shows that the assured had a disease of the liver.] If you find that he had, then we say to you, the plaintiff cannot recover. As we heretofore said, Dr. Reber testified that the assured told him a week or two after he broke his ribs that he spit some blood. The assured did not say and the doctor did not know where the blood came from. There is no evidence that the assured spit blood other than Dr. Reber's recollection of a declaration which the assured made to him. On the other hand, there is evidence that he told his brother Thomas that he did not spit blood. All persons with whom he stayed and made his home during the last year of his life and who attended and waited upon him during his last illness testified they never saw any indications of his having spit blood.

We do not feel warranted in declaring this policy void upon such vague testimony which was wholly the recollection of but one witness of a loose declaration of the assured, uncorroborated by any other fact or circumstance in the case. It would be too narrow a construction of that part of this policy to hold that the mere spitting of blood was sufficient to avoid it without any evidence going to show that it indicated some derangement of the system that would increase the risk assumed by the insurance company. The blood referred to may have arisen in the mouth.

In the third paragraph the assured stated that he was in sound health. We do not construe this statement to mean that an applicant for insurance must be in perfectly sound health, but that his health is in such condition as is usually enjoyed by men of his age. Whether it was or not is a question for you to determine. If it was not of such condition then the plaintiff cannot recover.

In the fourth paragraph the assured states: The following is the name of the physician who last attended me, the date of the attendance, the name of the complaint for which he attended me, " Dr. Reber, Painterville, __ Pa. __, Jan., '99, three ribs broken." The defendant alleges that this was untrue in that his ribs were broken in February instead of January. [The application does not state in what part of January his ribs were broken, whether the beginning or ending of it, and if you believe the statement made by the assured that they were broken in January was made in good faith, and was substantially correct, although it should turn out they were broken in February, it seems to me, it would not be sufficient to avoid this contract. I do not feel justified in saying as a matter of law that a few days or even a couple weeks' discrepancy between the time accident actually happened and the recollection of the assured as to when it did happen should avoid this policy. Whether the statement that the ribs of the assured were broken in January instead of February if not literally true but made in good faith, were material to the risk, is submitted for your determination. If you find that they were material, then the plaintiff cannot recover.]

The defendant alleges that the assured's statement in the fifth paragraph, that he had not been under any care of the physician within two years unless as stated in the previous line, was untrue. The line referred to in the fourth paragraph, is that Dr. Reber had attended him for broken ribs. That is, Dr. Reber was the last physician who attended him and that was for broken ribs. The only evidence on this point is that the assured called on Dr. Reber and Dr. Baker perhaps three or four times within two years prior to the date of his application, that he had got some medicine from them at such times for his liver or stomach when temporarily deranged, and Dr. Reber visited him twice. He was not under the continuous oversight of either of these physicians for any length of time, although Dr. Baker says he visited him twice but does not remember for what he treated him. We do not think the occasional calling upon these physicians for medicine to correct a disordered stomach, or an occasional visit to him by the physician was within the contemplation of the assured or the company at the time of receiving or making this application and issuing the policy. The question, therefore, for you to determine is whether the failure to inform the company of these occasional treatments received from Drs. Reber and Baker were material to this risk and should the assured have informed the company at the time he made his application of having received such treatment and medicine. Unless you find all these questions in favor of the plaintiff, he cannot recover and your verdict should be for the defendant.]

Verdict and judgment for plaintiff for $ 511.39. Defendant appealed.

Errors assigned among others were above instructions, quoting them.

Reversed.

W. W. Uttley, of T. M. Uttley & Son, with him James A. Stranahan, for appellant. -- The court should have submitted to the jury the testimony of F. W. Glacier without telling them that it was of no value. The effect of this remark was to withdraw it from their consideration.

No principle of law will enable a party who guarantees a fact upon which a contract of insurance is based, which fact is afterwards found not to exist, to enforce the contract: Hartman v. Keystone Ins. Co., 21 Pa. 466; Commonwealth Mutual Fire Ins. Co. v. Huntzinger, 98 Pa. 41; United Brethren Mutual Aid Society v. White, 100 Pa. 12; United Brethren Mutual Aid Society v. O'Hara, 120 Pa. 256; Smith v. N.W. Mutual Life Insurance Company, 196 Pa. 314.

The Act of June 23, 1885, P. L. 134, P. & L. Dig. Col. 2382, has not changed the law as to warranties which are material to the risk: Lutz v. Metropolitan Life Ins. Co., 186 Pa. 527.

The fact that trouble for which a physician has been consulted or called in is not a serious illness makes no difference: United Brethren Mutual Aid Society v. O'Hara, 120 Pa. 256; Cushman v. United States Life Ins. Co., 70 N.Y. Ct. of Appeals, 72; Wall v. Royal Society of Good Fellows, 179 Pa. 355; March v. Metropolitan Life Ins. Co., 186 Pa. 629; Smith v. N.W. Mutual Life Ins. Co., 196 Pa. 314.

A. Reed Hays, for appellee. -- While the court did express an opinion as to the value of the testimony of F. W. Glacier, it was not withdrawn from the consideration of the jury.

A mere temporary indisposition which does not tend to weaken or undermine the...