Berman v. Fraternities Health & Accident Ass'n

• Decision Date: 13 December 1910
• Citation: 107 Me. 368,78 A. 462
• Parties: BERMAN v. FRATERNITIES HEALTH & ACCIDENT Ass'n.
• Court: Maine Supreme Court

78 A. 462

107 Me. 368

BERMAN

v. FRATERNITIES HEALTH & ACCIDENT Ass'n.

Supreme Judicial Court of Maine.

Dec. 13, 1910.

Exceptions from Supreme Judicial Court, Androscoggin County.

Action by Herman I. Berman against the Fraternities Health & Accident Association. There was a directed verdict for defendant, and plaintiff brings exception. Overruled.

Action of assumpsit brought to recover the sum of $167 as sick benefits under a policy of insurance issued to the plaintiff by the defendant. Plea, the general issue with brief statement as follows: "That, by the terms of the contract in suit, if any of the statements, representations, or answers made in the application for said contract were not true, full, and complete, all rights to benefits thereunder were null and void; and the defendant says that the answers to the first, second, third, fourth, eighth, and ninth questions contained in the application for said contract were not true, full, and complete.

"That further, by the terms of the contract in suit attempts by fraud or concealment to obtain benefits rendered the contract or policy null and void; and the defendant says that the answer of said plaintiff to question 14, in the proof of claim filed by him, was untrue, and was an attempt by fraud and concealment to obtain benefits to which he was not entitled."

At the close of the evidence, the presiding justice ordered a verdict for the defendant and the plaintiff excepted.

The case is stated in the opinion.

Argued before EMERY, C. J., and SAVAGE, PEABODY, CORNISH, and KING, JJ.

Jacob H. Berman, for plaintiff.

Harry Manser, for defendant.

KING, J. Action to recover sick benefits under a policy of health and accident insurance. At the close of the evidence, the presiding justice directed a verdict for the defendant.

In the plaintiff's application for the policy made January 13, 1908, it was stipulated: "That if any of the statements, representations, or answers made herein are not true, full, and complete, all rights to the benefits named in my policy shall be null and void, and ail money paid by me to the association forfeited." In the policy of insurance it is stipulated that it is issued: "In consideration of the payment of the application fee and the statements, agreements, and warranties in the application for a policy, which is made a part of this contract."

Among the questions and answers contained in the application are the following:

"(2) Have you been in good health for the last five years? Ans. Yes.

"(3) Have you consulted, been prescribed for, or required the services of a physician or surgeon during the past five years? If so, give date and state particulars, name and address of attending physician. Ans. Went to Dr. Cummings of Lewiston for advice on being nervous.

"(4) Have you ever had [here were named several diseases and infirmities, including "nervous prostration"]? Ans. No."

The evidence establishes with unquestionable certainty that the plaintiff was afflicted with nervous prostration for a considerable period of time during the summer of 1907. In the early part of July of that year Dr. E. S. Cummings, of Lewiston, examined him, and found him suffering from nervous prostration and unfit to attend to his business. On July 15, 1907, he consulted Dr. Addison S. Thayer, of Portland, and also on August 2, August 12, and September 5, 1907. Dr. Thayer says: "By my advice he began at once a rest cure, at Old Orchard, which was prolonged until September 6th." Dr. Cummings on October 24, 1907, certified under oath that the plaintiff "after leaving the care of Dr. Addison S. Thayer of Portland was under my care from September 7th to September 30th and unable to attend to his business." With reference to the plaintiff's condition in September, 1907, when he came back to Dr. Cummings, the doctor was asked "whether the disease from which Mr. Berman was suffering on September 7, 1907, was nervous prostration"? to which he replied: "Well, it was—you say at that time, 1907? At that time he was recovering." But he added that he was not then fit to do business, and that condition continued to September 30, 1907. July 17, 1907, Jacob Judelsohn, a brother-in-law of the plaintiff, at his direction, wrote from Portland to the secretary of the Order of Knights of Golden Eagle as follows: "Mr. H. I. Berman of Lewiston, Me., is ill here. Dr. Addison Thayer of this city has ordered him to keep away from business, as he is too ill to attend same." From this Order of Knights of Golden Eagle the plaintiff received benefits for sickness from July 15 to September 30, 1907, to the amount of $40. From the Order of Knights of Pythias the plaintiff received, October 31, 1907, $37.50 "on account of 10 weeks sick benefits" during that summer. The plaintiff also made application to the Preferred Accident Insurance Company of New York, in which he was insured, for benefits for sickness for 11 weeks from July 14 to September 30, 1907, and received from that company the sum of $137.50 therefor. He also received benefits for the same sickness from the Order of Beth Abraham, the amount of which he did not state.

It is of consequence, we think, to note that the illness for which the plaintiff seeks to recover in this action according to his proof of claim was "complete mental and nervous prostration," on account of which he was wholly disabled from May 28 to September 21, 1908, and that he was "at the New England Sanatarium, Melrose, Mass., for treatment about three months, more or less." In his proof of claim, in answer to the inquiry if he had been afflicted with the same disability before, he said: "Had a slight attack similar, but not exactly like this, a year ago."

In view of the foregoing facts, about which there is no question, the conclusion is irresistible that the plaintiff's answers and statements to questions 2, 3, and 4, at least, in his application were manifestly and palpably "not true, full, and complete."

If it were a fact, as claimed by the plaintiff at the trial, but which seems incredible, that at the time of his application he was sincere and believed his answers were true, full, and complete, that fact could not save him from the forfeiture stipulated by him to be the effect if they were not true, full, and complete in fact. His express stipulation that his answers were true called for truth in fact, and not for truth according to his belief or understanding. Johnson v. Insurance Co., 83 Me. 182, 22 Atl. 107.

But the plaintiff contends that the Information which he gave to the defendant's agent who was present when he filled out the application and the advice and suggestions made by the agent with respect to his answers estops the defendant from setting up the falsity of those answers. He invokes the well-settled doctrine that an insurance company is bound by the knowledge which its agent has of the risk and of all matters connected therewith, and that omissions and misdescriptions known to the agent shall be regarded as known by the company, and waived by it.

This contention, however, is not supported in fact. The evidence is altogether too weak to justify a finding in fact that the defendant's agent had such...