Kaitlin v. Metro. Life Ins. Co.

• Decision Date: 24 March 1949
• Docket Number: No. 757.,757.
• Citation: 65 A.2d 188
• Parties: KAITLIN v. METROPOLITAN LIFE INS. CO.
• Court: D.C. Court of Appeals

65 A.2d 188

KAITLIN

v.METROPOLITAN LIFE INS. CO.

No. 757.

Municipal Court of Appeals for the District of Columbia.

March 24, 1949.

Appeal from The Municipal Court for the District of Columbia, Civil Division.

Action by Naomi Kaitlin against Metropolitan Life Insurance Company, a body corporate, to recover on a life policy. From an adverse judgment, the plaintiff appeals.

Affirmed.

I. Irwin Bolotin, of Washington, D. C. (M. Taft Woodruff and Denver H. Graham, both of Washington, D. C., on the brief), for appellant.

John E. Powell, of Washington, D. C. (Arthur P. Drury, John M. Lynham and Laidler B. Mackall, all of Washington, D. C., on the brief), for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CAYTON, Chief Judge.

In June 1945 the Metropolitan Life Insurance Company issued a $2500 policy of insurance on the life of Solomon Kaitlin. On February 15, 1947, before the policy had reached the two-year incontestable period, Mr. Kaitlin died. The company refusing to pay, Naomi Kaitlin, widow of the insured and beneficiary under the policy, brought suit thereon. The trial court directed a verdict against her and she appeals.

In the application for insurance there were these questions: ‘Have you ever been treated for, or told that you had, high blood pressure? Have you ever had any ailment or disease of (a) The Brain or Nervous System? (b) The Heart or Lungs? (c) The Stomach or Intestines, Liver, Kidneys or Genito-Urinary Organs? (d) The Skin, Bones, Glands, Ears or Eyes? (a) Have you ever had Rheumatism, Gout or Syphilis? (b) Have you ever had any form of paralysis or insanity? (c) Have you ever had Diabetes, Pleurisy or Pneumonia? (d) Have you ever raised or spat blood? If so, give full details (e) Have you ever had any Accident, Injury or Occupational Disease? (f) Have you ever had any Surgical Operation?’ All of the above questions the insured answered ‘No.’ There was also this question: ‘Have you consulted a physician for any ailment or disease not included in your above answers?’ This he also answered ‘No.’ In the application there was also this question: ‘What clinics, hospitals, physicians, healers or other practitioners, if any, not named above, have you consulted or been treated by, within the past five years? If none, so state.’ The answer of the insured was ‘None.’

Thus we see that the insured represented in his application not only that he had not consulted a physician for any ailment not included among the eleven groups named, but also made the general representation that he had not consulted or been treated by any physician within the preceding five years. The undisputed evidence revealed that these statements were untrue.

The evidence revealed that he had consulted or been treated several times by three different physicians in the approximately two years before the policy was issued. The evidence showed that his family physician had referred him to a heart specialist, Dr. Dickens, in March 1943, some 27 months before the policy was issued, and that the insured complained to Dr. Dickens ‘that he had been suffering with pains in the chest of a squeeze-like nature, which had radiated down into his left arm’ and that ‘those pains would come on him at night while at rest in bed, and also at work.’ Based on the history given by Mr. Kaitlin and on his own examination and on blood pressure readings and electrocardiographic tracings he made, Dr. Dickens made a diagnosis of hypertensive heart disease. Dr. Dickens again examined Mr. Kaitlin in August 1943 and this time the patient gave him the same history adding that he was then frequently being awakened at night, perspiring freely, and suffering from shortness of breath. Again Dr. Dickens made a physical examination of the patient and an electrocardiographic study, and diagnosed the case as one of coronary insufficiency with angina pectoris. Two months later the insured was confined to bed and while there a third electrocardiographic tracing was made. This confirmed the earlier diagnosis of hypertensive heart disease and also revealed that the damage to the patient's heart had increased since the time Dr. Dickens first examined him some five months earlier. All these findings, based on the three examinations of the patient, Dr. Dickens communicated to his family physician, but not to the patient. The family physician died before the time of trial.

A new physician, Dr. Winik, came into the case in September 1943. He testified that Mr. Kaitlin was worried about his heart and complained to him of recurring attacks of pain around the heart and said that the first of these attacks had occurred about a year before. The doctor prescribed three or more drugs, to act as a sedative, to reduce the blood pressure, and to relieve the pain around the heart. He saw and treated Mr. Kaitlin several times and in October 1943 ordered him to bed for three weeks. At that time Dr. Winik made a tentative diagnosis of coronary insufficiency. He testified that the insured had an abnormal concern about his heart and always complained of pains around the heart and was convinced that he had heart disease. Dr. Winik told him he did not have heart disease, but advised him to change his job and to find one involving less tension. This the patient did. He again consulted Dr. Winik in May 1944 and in November 1944. On these occasions the doctor told the patient to continue with the same medication he had previously prescribed. All this, it will be seen, occurred before the policy was applied for or issued in June 1945.

Thereafter the insured had a serious heart attack in January 1946...