Brown v. Metropolitan Life Ins. Co.

• Decision Date: 14 April 1887
• Citation: Brown v. Metropolitan Life Ins. Co., 65 Mich. 306, 32 N.W. 610 (Mich. 1887)
• Court: Michigan Supreme Court
• Parties: BROWN v. METROPOLITAN LIFE INS. CO.

32 N.W. 610

65 Mich. 306

BROWN v. METROPOLITAN LIFE INS. CO.

Supreme Court of Michigan

April 14, 1887

Error to circuit court, Wayne county.

James A. Randall, (John Atkinson, of counsel,) for plaintiff.

Edmund Hang, for defendant and appellant.

MORSE, J.

Plaintiff brought assumpsit in the Wayne circuit court, upon two policies of insurance in the defendant company executed to Mercy Victoria Brown, and payable at her death to plaintiff,--one for the sum of $500, dated March 12, 1883 and one for the same sum, dated May 26, 1884.

Mercy Victoria Brown died on the fourth day of February, 1885. A written application was made for each insurance. The defendant claimed that certain statements in said applications, and warranted to be true, were false, and avoided the policy. In the court below, the plaintiff recovered a judgment for $886.79. The second policy provided that only two-thirds of the sum insured should be paid. Upon the first policy it was claimed by the defendant that the answers to the following questions in the application were untrue: "Question 15. When last sick? Answer. Nine or ten years ago. Q. 16. Of what disease? A. Typhoid fever. Q 17. Name the physician who last attended life proposed, and when? A. Dr. Henderson, nine or ten years ago."

It was claimed by the plaintiff that Mr. Wyatt, the agent who solicited the insurance, called at the house with one of the applications, (the first one,) and asked a few questions. But the answers were not written down there; Mr. Wyatt stating that, because he was afraid his horse would get away, he would write out the answers at the office, and forward them to the company. The court instructed the jury that, if they found this claim to be true, and believed the testimony of plaintiff, who is the mother of Mercy Victoria Brown, the defendant company was not in a situation to claim that the answers were not true, and that in such case she would be entitled to a verdict for the amount of the first policy; and that if they did not find her testimony in this respect to be true, and found the answers not to be true then their verdict should be for the defendant as to the first policy; but in considering the seventeenth question and the answer thereto, they should construe the same as follows: "Naming the physician who last attended for some disease;" that they should not consider any "merely personal or social call, but an attendance for sickness,--for disease."

The court also instructed the jury as to the second policy, and the application therefor, that, as it appeared from the testimony that said company had knowledge, by the first application, of the fact that the answers to the last were erroneous, the defendant could not claim anything from the answers therein being incorrect. In both applications there was a question, "Is said life now in sound health?" Answer in both, "Yes." It is claimed that these answers were untrue. The court directed the jury that, in order to find the answers to be false, they must find that the assured had some disease of a "serious nature;" that a mere temporary ailment, such as a headache, could not be considered as affecting the truth of such answers. The counsel for defendant claims that the testimony showed beyond contradiction that several physicians attended the assured after the time stated in her first application, and that this undisputed testimony, proving the statement in such application that she was last attended by Dr. Henderson some nine or ten years before 1883 to be false, rendered the first policy issued upon such application void.

The first question to be determined under the first policy is the correctness o the charge of the court that, if Mrs. Brown's testimony was true, the defendant could not make any defense upon the falsity of the answers in the application, for the reason that they could not be considered the answers of Mercy Victoria Brown. Mrs. Brown, the plaintiff, testified that she was present when Mr. Wyatt, as agent of the company, solicited the insurance of her daughter. He took Victoria's signature to the application, and said he would fill it out down at the office. He was at the house not over five minutes. His horse was standing at the gate, and was restless, and he was afraid it would get loose and run away. Victoria told him that she had trouble every month; that was all the trouble she had; that she was well, except once a month, when she would sometimes have a sick spell of a day or two. He did not ask her about having any kidney disease, or any other ailment or difficulty. Asked her some questions about her father and mother. He told her to sign the application, and he would take it down to the office, and fill it out. He said he could not wait; he was going to dinner, and his horse would not stand. On cross-examination, she further stated that Wyatt asked Victoria a few questions. He asked her if she was well. She told him she was well, except one thing. He asked her "if she had any doctor, or something; I don't know." She told him she hadn't any. Does not remember whether he asked her what doctor she had, or whether any one else attended her. Her remembrance of the conversation is quite shadowy and indistinct.

Granted that Wyatt did fill out the application after he returned to the office, and yet we do not think that the evidence of Mrs. Brown warranted the charge of the court in respect to such application. It does not appear from her testimony beyond question that any of the answers claimed to be false were not made by Victoria at the interview at the house. If she did answer at the house, as set forth in the application, the fact of such answers being filled in at the office, after she signed the application, can make no material difference in the rights of her beneficiary or the company under said application, and the policy issued thereon. The question as to whether or not she made the answers to the agent as written in the application should have been submitted to the jury. If they found that she made the answers, then their truth or falsity should have been inquired into. If she did not make them, or any of them, and they were filled in after she signed, without her knowledge or consent, then, as to such answers so inserted, the company would be precluded from defending because of their falsity. In relation to the answer that Victoria had been last attended by Dr. Henderson some nine or ten years ago, we can find no occasion in the testimony for the instruction of the court that "no merely personal or social call" of a physician could be considered, but it must be an "attendance for sickness,--for disease."

There could be no claim from the record before us that any of the physicians who prescribed for Victoria made any personal or social calls. It appears from Dr. Van Norman's testimony that his services were "professional," and commenced on the sixteenth of October, 1882, and were concluded on the twenty-eighth of May, 1883. There were 14 consultations between those dates. She came to his office each time. He never attended her at the house. Dr. Shurley had professional visits from her at his office between May 20 and June 12, 1881, and attended her once at her home on Lewis street. Dr. Gilbert saw...