Aetna Life Ins. Co. of Hartford, Conn. v. Millar
| Decision Date | 16 November 1910 |
| Citation | 78 A. 483,113 Md. 686 |
| Parties | ÆTNA LIFE INS. CO. OF HARTFORD, CONN., v. MILLAR. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; George M. Sharp Judge.
Action by William J. S. Millar against the Ætna Life Insurance Company of Hartford, Connecticut. From a judgment for plaintiff, defendant appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, PATTISON, and URNER, JJ.
William L. Rawls and George Weems Williams, for appellant.
John L V. Murphy and Julius H. Wyman, for appellee.
This is the defendant's appeal from a judgment rendered against it in the superior court of Baltimore City. The suit was in assumpsit, and was based upon a health benefit certificate issued by the appellant to William J. S. Millar, the plaintiff. The declaration alleged that the defendant, in consideration of the sum of $60, paid by the plaintiff to it, issued to him the policy or certificate sued on, whereby it agreed to pay to the plaintiff certain sums of money according to a schedule of operations attached to the policy, and a further sum for each week during the disability of the plaintiff resulting from illness. It further alleged that on the 2d day of July, 1908, the plaintiff was operated on for a disability mentioned in the schedule, to wit, mastoiditis, and was disabled from performing his usual business duties for a period of 13 weeks. It also alleged that the plaintiff had given the defendant notice of said illness and operation according to the requirements of the policy, and had in all other respects performed all the obligations imposed upon him by the contract of insurance; but that the defendant had refused to pay him the amount due him under the policy. The amount claimed was $375. To this declaration the defendant interposed the general issue pleas, and two special pleas, numbered 3 and 4. The third plea alleged that the plaintiff in his application for the policy mentioned in the declaration made the statement that he had not received medical attention within two years preceding the making of the application, which statement the plaintiff warranted to be true; that that statement was made a part of the contract of insurance, and was relied upon by the defendant; that in fact the plaintiff had received medical attention within two years preceding the making of the application as he well knew. It further averred that these facts constituted a breach of warranty as to a matter material to the risk and avoided the policy. The fourth plea is similar to the third with one exception. It omits the allegation found in the third plea that the untrue statement alleged to have been made was knowingly made by the plaintiff. The plaintiff joined issue upon the first and second pleas and replied to the third and fourth. The replication denied the plaintiff having received medical attention within the period mentioned, and averred that no statement contained in his application for insurance constituted a breach of warranty as to a matter material to the risk as in avoidance of the policy. Issue was joined upon these replications, and the case proceeded to trial, resulting in a verdict and judgment for the plaintiff for the full amount claimed.
The issues raised under the third and fourth pleas, viz., the falsity and materiality of the statements set out in these pleas, present the only real questions in the case. The record contains two bills of exception. One relates to the ruling of the court upon a question of evidence, and the other to its action on certain prayers and special exceptions filed by the defendant. At the conclusion of the whole case the court granted two prayers on behalf of the plaintiff, and granted the defendant's second prayer. It overruled the defendant's special exception to the plaintiff's first and fourth prayers, which were the ones granted, and refused the defendant's first, third, fourth, fifth, sixth, and seventh prayers. This action of the court is presented for review by the second exception. The jury were instructed by the plaintiff's first prayer that if they found that the defendant executed the policy of insurance referred to in the evidence and delivered the same to the plaintiff and that the plaintiff paid to the defendant all premiums payable thereon and complied with all the under takings and stipulations to be performed on his part in said policy; and if they further found that during the term mentioned in said policy the plaintiff was operated on for the disability referred to as mastoiditis in the schedule attached to the policy, and further found that said disability was not contracted within 15 days after noon on the day of the date of the policy and was disabled from prosecuting any and every kind of business pertaining to his occupation for a period of 13 weeks, as testified to, and further found that said plaintiff exhibited and delivered to the defendant notice of said illness and operation and proper and sufficient proof of the same within two months from the termination of said 13 weeks and before the bringing of this suit--then the plaintiff was entitled to recover, unless the jury found from the evidence that the application for the policy on the part of said plaintiff contained some misrepresentation or untrue statement of facts not made in good faith by said applicant, or unless the jury found that said application contained some misrepresentation or untrue statement on some matter material to the risk. By the plaintiff's fourth prayer the jury were told that if they found the facts set forth in the plaintiff's first prayer and further found that the plaintiff informed the agent of said company that he had on one occasion an earache concerning which he had consulted a physician, but that he had received no treatment or medicine from said physician, and that the agent advised the plaintiff that the statement in the application, to wit, "I have not received medical attention within the past two years except as herein stated," did not refer to such consultation, and that the agent filled in the word, "No," and that the plaintiff, relying upon the statement of the agent of the defendant, signed the application believing said conclusion "No" to be the truthful answer to the statement, then their verdict should be for the plaintiff. The jury were told by the defendant's second prayer that if they found that the plaintiff contracted the disease mentioned in the evidence and therein described as mastoiditis, and that said disease was contracted by the plaintiff prior to the issuance of the policy of insurance sued on in this case, or if they found that said disease was contracted within 15 days after the issuance of the policy, then the verdict of the jury must be for the defendant. The defendant's rejected prayers will be noticed later. The correctness of these instructions must be determined by the facts disclosed by the record, and those facts, so far as they bear upon the issues raised by the pleadings, will now be stated. The policy, which is contained in the record, recites that the defendant, in consideration of the premium of $60 and of the statements in the schedule of warranties indorsed thereon, which statements the policy declares the plaintiff warrants to be true, insured the plaintiff for the term of one year from the 15th day of June, 1908, commencing and ending at 12 o'clock noon, standard time: First, against disability or death resulting directly and independently of all other causes from bodily injuries, etc.; and, secondly, against disability from illness as defined in the policy. The illness from which the plaintiff suffered is not excepted by the terms of the policy; but by section 22 of the policy it is provided that insurance does not cover disability resulting from any disease contracted within 15 days from noon of the day the policy is dated. The surgical operation performed upon the plaintiff is within the terms of the policy.
The application of the plaintiff, which is made a part of the policy, contains the following statement: This statement the defendant insists was false and material and avoids the policy. The statement must be treated as a warranty; but its legal effect is modified and controlled by the statute of this state upon the subject. In Monahan v. Mutual Insurance Company, 103 Md. 155, 63 A. 211, 5 L. R. A. (N. S.) 759, we said: ...
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