Marshall v. Metro. Life Ins. Co.

• Decision Date: 16 May 1949
• Docket Number: Gen. No. 44630.
• Citation: 86 N.E.2d 262,337 Ill.App. 498
• Parties: MARSHALL v. METROPOLITAN LIFE INS. CO.
• Court: United States Appellate Court of Illinois

337 Ill.App. 498

86 N.E.2d 262

MARSHALL

v.METROPOLITAN LIFE INS. CO.

Gen. No. 44630.

Appellate Court of Illinois, First District, First Division.

May 16, 1949.

Appeal from Superior Court, Cook County; James M. Corcoran, Judge.

Suit by Annabell Marshall against Metropolitan Life Insurance Company to recover as beneficiary on two life policies issued by defendant. Verdict and judgment for plaintiff and defendant appeals.

Judgment affirmed.Eckert & Peterson, Chicago (Owen Rall, William A. Cannon, and Walter P. Steffen, Chicago, of counsel), for appellant.

Alfred Roy Hulbert, David H. Greenberg, Chicago, for appellee.

TUOHY, Justice.

Plaintiff Annabell Marshall, as beneficiary, sued defendant to recover on two policies of life insurance issued by defendant on the life of Frank H. Marshall, plaintiff's deceased husband. From a Superior Court judgment for $8,900 on a verdict, defendant appeals.

The first policy, dated March 3, 1944, was in the sum of $6,000, and the second, dated March 20, 1944, was in the sum of $2,000. The insured died on February 4, 1946, within the contestable period.

The company defends on the ground that both policies were avoided by material misrepresentations made in answer to certain questions in the written application for insurance. The questions and answers are:

Question No. 11(b): ‘Have you ever had any ailment or disease of the Heart or Lungs?’

Answer: ‘No.’

Question No. 12(g): ‘Have you consulted a physician for any ailment or disease not included in your above answers?’

Answer: ‘Yes. Influenza-three or four days, January, 1940-mild-Good results. Dr.?’

Question No. 13: ‘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.’

Answer: ‘None.’

On December 30, 1943 Marshall was attended in his home for an illness, the symptoms of which were nausea and vomiting. Between the 3rd day of March, 1944, when the application was made, and the 22nd day of March, when the first policy was delivered and the second policy ordered, Marshall suffered an illness which was diagnosed as heart disease. Although no formal application was made for the second policy, upon its delivery, April 4, 1944, the insured signed a document designated an ‘Application Amendment.’

As to the first policy, plaintiff maintains that whether or not the failure to disclose the illness of December 30th and the statement that he had not been treated by a doctor within the past five years materially increased the hazard insured against, was, under all the facts and circumstances, a question for the jury to determine, and that by their verdict they determined the question in accordance with plaintiff's contention. Defendant contends that the illness of December 30th was a gall bladder attack; that, as such, the undisputed testimony proved it was material to the risk, and that the failure to disclose the condition in answer to question No. 12(g) and the positive statement by Mr. Marshall that he had not seen a physician in the past five years, in answer to question No. 13, was a material misrepresentation sufficient to avoid the policy as a matter of law.

As to the second policy, plaintiff maintains that its issuance was not preceded by an application and that no misrepresentations of any kind were made with reference to it. Defendant contends that there was, in effect, a renewal of the questions and answers of the original application by virtue of the ‘Application Amendment,’ and that being so, not only questions Nos. 12(g) and 13, but question No. 11(b) was also falsely answered, because of the heart condition discovered after the signing of the application, but before the execution of the amendment. Defendant also complains of errors in instructions given to the jury on behalf of plaintiff.

In view of the questions raised, it is necessary to consider the evidence at some length. Frank Marshall and an associate in the beer business spent the early evening of December 30th drinking together, after which they had dinner. During the night Marshall complained of being ill to his stomach, vomited several times, and in the morning Dr. H. Hoyt Cox was called to the home to attend him. Dr. Cox had never seen Mr. Marshall before this occasion and never saw him again; at the trial he did not remember what he did in making the examination, but he left a prescription to be filled. The next day Mrs. Marshall called Dr. Cox and told him that Mr. Marshall was all right. It also appears that Craig Dennison, Mr. Marshall's companion on the party of the night before, was also taken ill during the night with a stomach complaint similar to that suffered by Marshall. It does not appear that Marshall ever again had a recurrence of this type of illness.

The evidence of gall bladder attack, upon which the defendant relies, appears in the testimony of Dr. Cox, who produced an office record showing a call upon Frank Marshall on December 30th and containing the notation ‘gall bladder attack.’ This card was permitted to go into evidence without objection, although the doctor specifically stated that he had no independent recollection of the call on Mr. Marshall and that the card did not refresh his recollection as to the call. Upon cross-examination the doctor stated that he had never seen Mr. Marshall before the night in question; that the words ‘gall bladder attack’ on his record were not written by him, but by his nurse or secretary; that he did not know what he did in making the examination; that he does not remember whether Mr. Marshall was vomiting; that he had no recollection of this case; that that night's call was the last he heard of him. He says, ‘But so far as this man was concerned, I have no recollection of this case. As to whether there was any reason why I didn't go back after diagnosing this as a gall bladder attack, I have no recollection of this case whatsoever. I told you that. As to whether I prescribed for him, unquestionably I did. As to whether I remember what I gave him, I have no recollection of this case whatsoever.’ If this card is to be taken as proof of a definite diagnosis of gall bladder attack, then plaintiff has been deprived of her right of cross-examination, because the doctor who is alleged to have made the diagnosis of gall bladder attack, when produced on the witness stand, was unable to substantiate the record by any recollection whatsoever of the occurrence. If it were the doctor's opinion at the time that he took the stand that Marshall had suffered this attack, then the plaintiff was entitled to cross-examine him fully as to the findings and the reasons that entered into the diagnosis. This the plaintiff was unable to do by virtue of the doctor's position that he had no recollection whatsoever of the transaction. Under these circumstances, we attach no probative value to this card, particularly where the report was so clearly incompetent as evidence. Where a witness can testify that a private report or document made by him at the time of the occurrence refreshes his recollection, the document or report may only be used for that purpose, and is not otherwise admissible in evidence. Village of Broadview v. Dianish, 335 Ill. 299, 167 N.E. 106;People v. Zalimas, 319 Ill. 186, 149 N.E. 759.

Defendant argues that the prescription which the doctor supplied was that which he customarily used for gall bladder attacks. The ingredients of this prescription might have been used for many illnesses other than gall bladder, and while it might have been corroborative had the doctor testified positively to a diagnosis of gall bladder attack, in the absence of underlying proof we do not feel the circumstance lends any support to defendant's contentions.

Defendant argues that ‘the issue here is not whether the insured had a gall bladder attack,’ but that ‘the policies are both avoided because the insured denied consultation with and treatment by Dr. Cox only nine weeks before the date of the application,’ and that ‘this misrepresentation was shown to be material as a matter of law.’ The issue, as we view it, is whether or not the insured suffered, prior to submitting his application for insurance, from an illness, by whatsoever medical name it may be called, of such severity that a misrepresentation concerning it materially affected the risk. It was properly within the province of the jury to determine to what extent it materially affected the risk, especially in the light of the testimony of Dr. Cox, defendant's witness, who stated that a gall bladder attack is one that is acute and sudden, one of those things that comes on suddenly and then passes away after proper remedies, and that it is not something that is damaging to the constitution. Defendant says that the misrepresentation was material to the risk and was so proved as a matter of law because the undisputed testimony of three doctors was to the effect that the illness suffered by Marshall on December 30th was material to the risk. However, these doctors were testifying to a hypothetical case based upon a diagnosis of gall bladder attack. If there was no gall bladder attack, then there is no testimony in this case on behalf of defendant that there was any illness material to the risk. The rule as to whether or not the misrepresentations contained in an application are material to the risk is stated as follows in Hancock v. National Council of Knights and Ladies of Security, 303 Ill. 66, at page 71, 135 N.E. 33, at page 34: ‘Whether statements of an application made as incidental and inducement to a contract are material may be the subject of evidence and raise questions of fact, unless they are of such a nature that all persons would agree that they are or are not material. Whether a representation is material is determined by the question whether reasonably careful and intelligent men would have regarded the fact stated as...