Breisenmeister v. Supreme Lodge K.P. of the World

• Decision Date: 27 June 1890
• Citation: 81 Mich. 525,45 N.W. 977
• Court: Michigan Supreme Court
• Parties: BREISENMEISTER v. SUPREME LODGE K. OF P. OF THE WORLD.

45 N.W. 977

81 Mich. 525

BREISENMEISTER v. SUPREME LODGE K. OF P. OF THE WORLD.

Supreme Court of Michigan

June 27, 1890

Error to circuit court, Wayne county.

D. F. Glidden, for appellant.

Wm. Look and H. F. Chipman, for appellee.

CHAMPLIN C.J.

This is an action brought by the beneficiary named in a benefit certificate issued by the Endowment Rank of the Knights of Pythias on the 21st day of September, 1887. Herman Breisenmeister made application for membership in the Endowment Rank on August 16, 1887, and was examined and admitted to membership, and died on February 22, 1888. He named his wife as beneficiary, who is the plaintiff in this suit. After her husband's death, she presented a claim for the amount of the endowment, and also furnished the affidavits and certificates of proof of death, burial, and standing in subordinate lodge and section, together with the necessary legal papers for the proper payment of the claim. Among the affidavits was that of David Henderson, M. D., who deposed that he was a regular practicing physician; that he had known Herman Breisenmeister about two months; that the cause of his death was endocarditis complicated with dropsy; that the duration of his last illness was about six months; that the complications and prime cause of death was the above-named dropsy, which he considered as a cause together with valvular disease of the heart; that he knew of no habits of deceased, or mode of life, which predisposed him to the disease, or the complications thereof, which resulted in his death. The following questions and answers were contained in the affidavit: "Did the deceased use intoxicating liquors? If so, to what extent, and what was the effect thereof upon the cause of death? None." The supreme lodge refused to pay the claim, and this suit was brought; and, under the plea of the general issue, defendant gave notice that it would insist in its defense that said benefit certificate was issued under and by reason of a certain application made by Breisenmeister, which was a part of the contract, wherein it was agreed that any untrue statement in said application or to the medical examiner, or any concealment of facts touching the health or expectancy of life of Breisenmeister, should work a forfeiture of all the rights of said Breisenmeister, his heirs and beneficiaries, under and by virtue of said certificate, and said Breisenmeister in said application willfully, and for the purpose of procuring said certificate, made false and untrue statements in said application and to the medical examiner, and concealed material facts concerning his health and expectancy of life, and that said medical certificate was procured by falsehood, and fraud, and deceit, and was void.

Upon the trial the application was introduced in evidence on the part of the defendant without objection, from which the following interrogatories and answers signed by the applicant appear: "Have you ever been predisposed to or had any of the following diseases: Apoplexy, asthma, bronchitis or habitual cough, diseases of the heart? No. Have you ever had, or have you now, any other disease or infirmity than above mentioned? No. Are you aware of anything regarding your health, habits, circumstances, or family history, not already stated, that should be known in order to fairly estimate the risk upon your life? No. Have you ever been liable to cough, difficulty of breathing, habitual expectoration, pain in the chest, or any other pulmonary symptoms, or palpitations of the heart? No. Are you willing that your family physician should, in the interest of the Endowment Rank, give it all the information in his power regarding your physical condition, habits, and general health? Yes. Give the name and address of your family physician. Has none. Never was sick." The proof of death was also read in evidence by counsel for defendant. Dr. David Inglis was then produced and sworn in behalf of defendant, and testified as follows: "I reside in Detroit. Am a practicing physician. Have practiced my profession about fifteen years. Was practicing my profession in the city of Detroit, in the month of August, 1887, and have been since that date. I knew Herman Breisenmeister during his life-time. During the month of August, 1887, I was called to see Mr. Breisenmeister professionally, also in the month of July. The first record I have of being called to see Mr. Breisenmeister was the 27th of January, 1887. I treated him at that time for nervousness, the result, as I believe, of using too much alcohol. I believe at that time I made a diagnosis of his physical condition entirely. I did not discover any disease aside from that I mentioned. I was there to see him on the 17th of February. At that date he was in the same condition. I urged him to give up the use of alcohol. He was getting himself into a state of extreme nervousness at that time, and I urged him that he should swear off, and I believe he did. And then, in February, I found that he had been using alcohol again, and I gave him another talking to; and then I saw him no more, as far as my recollection goes, or as far as my notes go, until the 26th of July. I then found that he was suffering from heart difficulty. I don't know that I can tell you better what sort of physical condition he was in than by giving you the memorandum that I made on the 3d of August, about a week later. I have that memorandum, just as I made it on that day. It was that he was suffering from palpitation,-the cardiac area increased; that means to say that the sack inclosing the heart-the size of the heart-was larger than natural. He was suffering from very great shortness of breath. The trembling was less; that is to say, this nervous trembling that he had before. As far as my memory serves me, that was about the condition I found on the 26th of July. He was confined to his house at that time. Sometimes he was in bed, and sometimes around the house. He was able to work in this way. I have had this experience with him about that time,-that I would go to see him, and find that he had gone to the shop. In other words, while he suffered from shortness of breath, he was a man of a good deal of endurance, and did not seem to comprehend his own condition; and the result was that I have gone on some occasions, and found that he was not at home. After that I treated him right along, from that time till-well, the last record that I have here was the 31st of January, 1888. From the 26th day of July, when I diagnosed his case as heart disease, until the 31st of January, 1888, the heart difficulty continued more or less uniformly, and gradually there set in a condition of dropsy. I am not able to give you the date when that dropsical condition set in, but it was some time afterwards. Question. Was that dropsical condition due to the difficulty of the heart? Answer. I think it was. (Mr. Chipman. Objected to as incompetent and irrelevant, and also on the ground of privilege, and also on the ground that the plea, and the notice under the plea, is not sufficiently specific to permit them to put this testimony in.)" The court sustained the objection upon the ground of privilege, but did not pass upon the sufficiency of the notice, and this branch of the objection is insisted upon here. The witness was then asked the following hypothetical question: "Q. Doctor, if you find a patient suffering from difficult breathing and palpitation of the heart on a given day, will that patient necessarily be conscious of those difficulties? A. Yes, sir. I said yes, but the yes ought to be qualified. It is entirely possible for a person to be entirely unconscious, and still be in a state of palpitation and difficult breathing. A man might lie in a state of stupor, and not be conscious of those conditions. Q. But, if he were not in a state of stupor, would he be conscious of those difficulties? A. O, yes." He further testified: "I have attended other members of his family. I had been his family physician. I attended Mr. Breisenmeister from the...