Western & Southern Life Ins. Co. v. Danciu
| Decision Date | 30 April 1940 |
| Docket Number | 27348. |
| Citation | 26 N.E.2d 912,217 Ind. 263 |
| Court | Indiana Supreme Court |
| Parties | WESTERN & SOUTHERN LIFE INS. CO. v. DANCIU et al. |
Appeal from Superior Court, Lake County; John F Cody, Judge.
Bomberger Peters & Morthland, of Hammond, for appellant.
McAleer Dorsey, Clark & Travis and Raymond B. Young, all of Hammond, for appellees.
On February 23, 1932, Bucura Corcodelu applied to appellant for a policy of life insurance. On March 10th, she submitted to a physical examination by appellant's examining physician and was passed by him as a good risk. The policy was issued as of that date and was delivered on April 1st. Mrs. Corcodelu died on September 7, 1932. On March 9, 1934, within the period of contestability, appellant filed an action against appellees to cancel the policy. Afterwards appellees filed a cross complaint to recover on the policy, and the case was tried on the cross complaint and the answers thereto. The second, third, and fourth paragraphs of answer questioned the state of health of the insured at the time the policy was issued.
The jury returned a verdict in favor of appellees and the court rendered judgment accordingly.
The error assigned is the overruling of appellant's motion for a new trial.
Appellant states in its brief that the principal question presented by this appeal is 'whether the court properly submitted to the jury the negative testimony of lay witnesses concerning their observation and conclusions as to the health of the insured as against the undisputed expert medical testimony showing the existence of tuberculosis.' The question, as put by appellant's attorney, is not quite accurate as the facts hereinafter will disclose.
The facts are in substance as follows: As stated above, Bucura Corcodelu made application to appellant for a policy of life insurance, and, on March 10, Dr. Siegmund Reich, as the examining physician for appellant, went to the home of Burcura Corcodelu, and conducted a physical examination of her, and recommended her as a good risk. He testified that he examined her lungs with a stethoscope and found nothing wrong; that he did not hear any rales at that time. He stated on cross examination that Mrs. Corcodelu would not remove her clothing, and that he made the examination of her lungs through her clothing. It does not appear affirmatively in the record that Dr. Reich, or any one else, requested Mrs. Corcodelu to remove her clothing in order for Dr. Reich to make a more thorough examination of her lungs.
The agent that solicited the application on February 23, delivered the policy to the insured on March 1, 1932. During the second week in April, the insured became ill. Anna Madrea, a neighbor and close friend of the insured, called Dr. Dasse. He testified that he made a physical examination and found the insured had a uterine hemorrhage, and a cough. He treated his patient for the hemorrhage, and examined her chest with a stethoscope. He found numerous rales in both sides of her chest. He took some sputum of his patient and sent it to the Molay Medical Laboratories in Chicago for examination for tubercle bacilli. The laboratory test did not reveal any tubercle bacilli. There was evidence that the doctor told her she had the flu and for her to stay in bed a few days and she would be all right. He testified that he made no such statement and also stated that it was his opinion at the time that she had beginning tuberculosis, and recommended she go and see Dr. Parramore. Dr. Dasse had no record of his visits to see the insured, and testified purely from memory. On April 27, the insured went to Crown Point to the sanitarium, but did not enter as a patient until June 4, 1932. A nurse, employed in the sanitarium took the history of the case as given by Bucura Corcodelu, and, according to Dr. Parramore, she stated that she had had a cold for about two months, and during that time she had lost weight, coughed, had no appetite, and had suffered loss of strength. Bucura Corcodelu, as stated above, was admitted to the sanitarium on June 4th, at which time her symptoms were improved. X-ray pictures were taken on June 7th, which showed scatered areas of infiltration over the lower half of the right lung and throughout the left lung. She remained in the sanitarium until the first part of July when she went home. Dr. Parramore testified that, from his examination of the patient, and from the history of the case as given to him, it was his judgment that Bucura Corcodelu had tuberculosis on April 1, 1932, the date of the delivery of the policy.
Dr. H. C. Groman, in answer to a hypothetical question based upon the facts, testified to by Dr. Parramore, testified favorable to appellant.
Appellee introduced evidence of several lay witnesses, who had known Bucura Corcodelu intimately for several years. Anna Madrea, a witness who lived just across the street from Mrs. Corcodelu, saw her almost every day, and some days saw her several times. These witnesses testified to the following facts in substance; that up to and prior to the second week in April, 1932, Mrs. Corcodelu had not been sick, had worked every day, did all her own house work, and, in addition, looked after the repair and cleaning of the walls of three or four rental properties owned by her. About the last part of February, a friend of Mrs. Corcodelu, in Chicago died. Mrs. Corcodelu went to the home and there helped with the cooking for two or three days. In about two weeks the family of her friend in Chicago came to visit her and other friends in Hammond. All of them went on a Picnic at Crown Point. About this time, on account of rain, water accumulated in the basement of Mrs. Corcodelu's home; she waded the water to open the sewer, and worked two or three hours in cleaning the basement of her home. About two or three days thereafter, she developed a severe cold and a hemorrhage of the uterus. This was the occasion when Anna Madrea called Dr. Dasse. Up to this time, all of appellee's witnesses testified that she was active, worked all the time, had lost no weight, and that they had never heard her cough. This was about the latter part of the second week in April, and about two weeks before she went to the Sanitarium at Crown Point.
Appellant objected to the admission of the testimony of appellee's lay witnesses on the theory that lay witnesses, under the facts presented here, are not competent to contradict the testimony of expert medical witnesses as to the state of health of the insured on a day named. It is appellant's contention that the testimony of the doctors, to the effect that the insured was not in good health at the time of the delivery of the policy, because she was afflicted with tuberculosis, is conclusive, and that the testimony given by lay witnesses as to the condition of the insured's health at that time should be disregarded.
It must first be noted that no doctor testified as a fact that the insured had tuberculosis on April 1, 1932, the date of the delivery of the policy. Their testimony went no further than to say that in their opinion, the insured had tuberculosis at that time. It should also be noted that the opinion of the doctors was based partly upon the history which Dr. Parramore said the insured gave at the time she first came to the Sanitarium. The history was given to and taken down by a nurse employed in the institution. This history, in substance, showed the insured as 50 years old, that she had been sick for a period of two months, that she had a cough with copious expectorations, that there were streaks of blood in her sputum, that she had pain in her right chest, that she had lost weight, had loss of strength, shortness of breath, poor appetite, and indigestion. Dr. Parramore testified that the patient told him that all of the above symptoms had been present for two months. Neither Dr. Parramore, nor any other doctor testified that he ever saw any blood in her sputum, that she expectorated copiously, or that her appetite was poor, or in any way described her appearance that would indicate that she had in fact lost weight, or that she had any outward symptoms of tuberculosis. The history, as above set out, was assumed to be true by appellant's witnesses and entered into and became a partial basis, at least, upon which they concluded that the insured had tuberculosis on April 1, 1932. Dr. Parramore was asked if it was possible that there was an error in the notes made by the nurse in that the patient said she had been sick for 'two weeks' instead of 'two months', to which he answered that that was possible, but that he did not think it was a mistake.
As noted above, several witnesses for appellee testified that prior to two weeks before she went to the Sanitarium, she had been in good health; that she had no cough,...
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