O'Brion v. Columbian Nat. Life Ins. Co.

• Decision Date: 28 March 1920
• Citation: 109 A. 379
• Parties: O'BRION v. COLUMBIAN NAT. LIFE INS. CO.
• Court: Maine Supreme Court

109 A. 379

O'BRION

v. COLUMBIAN NAT. LIFE INS. CO.

Supreme Judicial Court of Maine.

March 28, 1920.

Report from Supreme Judicial Court, Cumberland County, at Law.

Action by Hannah O'Brion, by her guardian, against the Columbian National Life Insurance Company. Before the law court on report. Judgment for plaintiff.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ.

Henry Cleaves Sullivan and William A Connellan, both of Portland, for plaintiff.

David E. Moulton and William H. Gulliver, both of Portland, for defendant.

CORNISH, C. J. This is an action of assumpsit upon an accident insurance policy brought in behalf of the beneficiary to recover the sum of $5,000 for the death of the assured, alleged to have been caused by accidental injury. The policy was issued to James H. O'Brion, the assured, on June 19, 1915, for the term of one year, and renewed on June 19, 1916, for another year. The beneficiary was Hannah O'Brion, a woman about 80 years of age and the mother of the assured. The automobile accident which the plaintiff claims caused the fatal injury occurred on the afternoon of Sunday, November 26, 1916, and death ensued on the morning of the next day, November 27, 1916. The case is before the law court on report.

The defendant, by way of brief statement, set up four distinct grounds of defense, and these will be considered in their order as pleaded.

1. False representation by the assured in item 17 of the application, viz.:

"My habits of life are correct and temperate; I am in sound condition mentally and physically; my speech or hearing is not impaired. I have not lost the sight of either eye, nor have I had a cataract or any disease of either eye; I have never had disorders of the brain, paralysis, fits, or any deformity."

The policy contains the usual stipulation that the right of recovery shall be barred in the event that any one of the statements or representations material to the acceptance of the risk or the hazard assumed by the company is false. That such a stipulation is held to be valid and binding needs no citation of authorities. Two facts, however, must concur to give it force: First, the statement must be untrue as of the time when made; and, second, it must be material either as regards the acceptance of the risk or as regards the hazard assumed by the company. If either element is lacking the stipulation fails.

The statement made by this applicant on June 19, 1915, lacks the first element, because it was not false. The evidence shows that the assured was a man 44 years of age, unmarried, a dentist in the city of Portland, and in active practice up to the very day of the accident. His associates and intimate friends knew him as a man of most exemplary habits, a total abstainer from the use of intoxicating liquors, and, so far as they were able to determine, in good health. His brother, Dr. Dennis J. O'Brion, who is a practicing physician in Portland, testified that James' health was "all right" and he had never known of his complaining of any illness whatever except on one occasion. That was in 1911, when the assured complained to him of pain in the right loin, and suspecting it might be caused by renal colic, the physician had X-ray pictures taken at the Maine General Hospital. These pictures, however, were negative in character, and after the administering of a laxative the trouble disappeared and did not recur. No other instance of illness or treatment by a physician from June, 1911, to the day of the accident, a period of over 5 years, appears in the evidence, with the exception of a slight injury to the wrist in 1915, from which he quickly recovered. In view of this history it is evident that the assured cannot be charged with making false statements in answering item 17.

The counsel for defendant argues, in opposition, the condition found at the post mortem examination, indicating, as he claims, the existence of Bright's disease. The exact condition and its significance is a matter of controversy between the two physicians, but in any view it weighs but little against the positive and uncontradicted testimony as to his general condition of health when the application was signed. His statement was made honestly, truthfully, and in accordance with the facts as he knew them. Under such circumstances, the law does not require the applicant to wait until an autopsy has been performed upon his body before the truth of his statement can be accepted at its full force.

2. In the second place, it is pleaded that a false statement as to a material fact was made under item 19 of the application, viz.:

"I have not been disabled, nor have I received medical advice or treatment, nor had any local or constitutional disease during the past five years, except as follows: In February, 1915, for injured wrist, lasting two weeks."

This paragraph, however, is marked in the application with a star referring to a footnote, in which the company specifies that this statement is "only required for health insurance." The policy under consideration was for accident, not for health insurance, and therefore this statement was entirely immaterial. In fact, this point, though raised in pleading, is not pressed in argument.

3. A breach of general provision No. 8 in the policy, which reads:

"Where not forbidden by statute, any medical adviser of the company shall have the right and opportunity (1) to examine the person of the insured in respect to any injury as often and in such manner as he requires during the pendency of the disability; (2) to examine the body or make an autopsy in case of death; and (3) to be present if any autopsy be made, timely notice of which must be given to the company."

The breach now complained of is that the company—

"was not accorded the right or opportunity to examine the body or to make an autopsy following the death or to be present in ease any autopsy was made, nor was the company notified of any autopsy."

The facts as to the autopsy made in this case are briefly these: Dr. Dennis O'Brion, physician, brother of the assured, thinking that the death was caused by the criminal negligence of the driver of the automobile, was determined to set in motion the necessary legal machinery to bring the guilty party to justice. As soon as he heard of James' death he went to his mother's house, and under his direction the body was removed to an undertaker's room. Then he applied to the county attorney and requested that an autopsy be made. That official declined to order one, but after several interviews and upon the continued insistence of the brother he finally...