Hughes v. John Hancock Mut. Life Ins. Co.
Decision Date | 01 October 1957 |
Docket Number | No. 60,60 |
Citation | 351 Mich. 302,88 N.W.2d 557 |
Parties | Mildred HUGHES, Plaintiff and Appellee, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation doing business in the State of Michigan, Defendant and Appellant. , |
Court | Michigan Supreme Court |
Sessions & Barlow, Muskegon, for appellant.
Marcus, Kelman, Loria, McCroskey & Finucan, Muskegon (Jerry S. McCroskey, Muskegon, of counsel), for appellee.
Before the Entire Bench.
This suit was brought upon a policy of life insurance in the amount of $1,000 issued February 1, 1951, by defendant to Grace Teall. The defense is what is known to the profession as medical fraud. The policy names plaintiff Mildred Hughes, daughter of Grace Teall, as beneficiary. Grace Teall died September 17, 1952, at age 53. The immediate cause of death was rupture of an ulcer of the stomach, causing peritonitis. A contributory cause of death, according to testimony offered by defendant, was hypertension, or high blood presure.
Application for the policy was made at Muskegon. Mrs. Teall, a resident of Muskegon, was visiting friends in Indianapolis at the time. The application was sent to Indianapolis for medical processing. A Dr. Cayley, defendant's medical examiner at Indianapolis, went to the home where Mrs. Teall was staying and proceeded with the required medical examination including filling out of answers to health and medical questions as contained in part 'B' of the application. The medical examination, the part 'B' question and answer interview, and the signature of part 'B' by Mrs. Teall, took place in the presence of surviving witnesses. 1 Dr. Cayley died prior to trial absent deposition on his part.
Part 'B' of the application contains this question and answer:
'Answer: 'No'.'
Suit having been filed, defendant pleaded that the quoted answer (plus another answer to another question we need not consider) to question 13 was false and fraudulent that such false answer materially affected acceptance of the risk, and that it was entitled to regard the policy as void for fraud. Due issue having been framed in such regard, the case came to jury trial. At close of the proofs and on motion a verdict was directed for plaintiff. Judgment for plaintiff thereupon entered, from which defendant appeals. The principal question brought here is whether an instructed verdict was proper.
First: The tables are turned in this typical case of alleged medical fraud in the making of application for life insurance. Here the insurer's examining physician was not present to relate from the witness stand that which is usually found in reports of similar cases, namely, that the medical application as supervised by and signed before him fully and correctly portrays all disclosures, by the applicant, pertaining to the latter's health and previous medical history. Instead, the two mentioned witnesses testified at length to full and material disclosures--not set forth in the application--by the applicant to defendant's examining physician. Such disclosures, if made as testified, vary substantially from the face of the application and supply in substance that which came to appraisal, in Pitcher v. World Insurance Co., 327 Mich. 520, 42 N.W.2d 735, in conjunction with Mr. Pitcher's answer to question 9 (see page 522 of 327 Mich., page 736 of 42 N.W.2d). Thus, and if witnesses Brown and Burns are to be believed, Dr. Cayley indeed should have written a 'yes' rather than 'no' answer to said question 13.
We have, then, a case where defendant has adduced proof tending to show that Mrs. Teall consulted her physician (Dr. Durnell of Muskegon) on 15 occasions during the five year period proceeding date of application and that the written answer to question 13 was therefore false. On the other hand, plaintiff has submitted proof that Dr. Cayley was given an honest and detailed answer to said question 13. The result was and is a jury question. We turn on these premises to steadfast reasons for ruling that a defendant as well as a plaintiff is entitled to have his case determined by the assembled triers of fact whenever questions of fact are testimonially made to appear.
Looking at defendant's proof as outlined, we agree with counsel that the written answer to question 13, coupled with Dr. Durnell's testimony that Mrs. Teall consulted him regularly during the five year period and received medical treatment in pursuance of such consultations, would ordinarily shift to plaintiff the burden of proving that Mrs. Teall's consultations with and treatment by her physician were not for an ailment or ailments tending to seriously weaken or undermine her health (Rhode v. Metropolitan Life Insurance Co., 129 Mich. 112, 88 N.W. 400; Bullock v. Mutual Life Insurance Co. of New York, 166 Mich. 240, 247, 131 N.W. 574; Wohlfeil v. Bankers Life Co., 296 Mich. 310, 319, 296 N.W. 269, and General American Life Ins. Co. v. Wojciechowski, 314 Mich. 275, 22 N.W.2d 371. However, and in the circumstances of claimed disclosure by Mrs. Teall, 2 the question of shifting of such burden cannot be resolved without jury appraisal or credibility of the testimony so given by Mrs. Brown and Mrs. Burns. This follows since there was no fraud if such disclosure was made. Here, then, is the difficulty with plaintiff's motion for directed verdict. It called for resolution by the trial judge of an issue of fact, something quite beyond his authority in a jury case.
The trial judge, prefacing his decision that a verdict for plaintiff should be ordered, said:
* * *
Granting that witnesses Brown and Burns apparently testified honestly as well as fully, we have no right to say, and thus the trial judge had no right to affirm, that their testimony must be accepted as a matter of law. Their testimony is opposed on this record by a writing. Such writing bears the attesting signatures of two deceased persons. It was received in evidence. Its content verity, like the credibility of witnesses Brown and Burns, was for the triers of fact. As was said by Justice Cooley (In Woodin v. Durfee, 46 Mich. 424, 9 N.W. 457, 458, where the trial judge had directed a verdict for the plaintiff):
'But the difficulty is that the facts were not conceded or beyond dispute: there was evidence of them which probably ought to have satisfied any one to whom it was addressed; but evidence is for the jury, and the trial judge cannot draw conclusions for them.'
Additional cases to the point are gathered in Cebulak v. Lewis, 320 Mich. 710, 718, 719, 720, 32 N.W.2d 21. We found recent occasion to follow them in Tien v. Barkel, Mich., 88 N.W.2d 552.
Perhaps the best exposition of the rule governing right of a party to a jury verdict, regardless of the trial judge's view of witness credibility, appears in a decision of the court of appeals of the fifth circuit, handed down in 1933 (Reid v. Maryland Casualty Co., 5 Cir., 63 F.2d 10, 11). On that occasion, following motion for a directed verdict (by the defendant), the trial judge stated that 'plaintiff impressed him as a man who would not tell the truth, but rather as one who colored his testimony to meet the exigencies of his case, and that the court would be duty bound to and would set aside as unsupported by the evidence a verdict in his favor should the jury return one * * *.' A verdict...
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