Metro. Life Ins. Co. v. Adams., 179.

• Decision Date: 05 May 1944
• Docket Number: No. 179.,179.
• Citation: Metro. Life Ins. Co. v. Adams., 37 A.2d 345 (D.C. 1944)
• Parties: METROPOLITAN LIFE INS. CO. v. ADAMS.
• Court: D.C. Court of Appeals

37 A.2d 345

METROPOLITAN LIFE INS. CO.

v.ADAMS.

No. 179.

Municipal Court of Appeals for the District of Columbia.

May 5, 1944.

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

Action by Mrs. Emmie M. Adams against Metropolitan Life Insurance Company on a life policy. From a judgment in favor of the plaintiff, the defendant appeals.

Reversed, with instructions.

Arthur P. Drury, of Washington, D. C., for appellant.

Peter N. Chumbris, of Washington, D. C. (Walter M. Bastian, of Washington, D. C., on the brief), for appellee.

Before CAYTON and HOOD, Associate Judges, and CLAGETT, Associate Judge of the Municipal Court for the District of Columbia. ^*

CLAGETT, Acting Associate Judge.

This is an appeal from a judgment for $1,000, entered on the verdict of a jury in favor of appellee-plaintiff in the trial court-who sued as the beneficiary of an insurance policy upon the life of her deceased husband.

Two principal assignments of error are relied upon by appellant: first, that the trial judge refused to direct a verdict in its favor; and, second, assuming that the case should have gone to the jury, that the trial judge erred in failing to instruct the jury upon all the issues raised by the pleadings and evidence.

The undisputed evidence was that the insured died at his home in Washington, D. C., on April 27, 1942, and that the cause of death was coronary occlusion, due to coronary sclerosis. The policy was issued on August 88 1941. Attached to and made a part of the policy was an application in the usual form signed by the insured on August 4, 1941. At the trial the issues were narrowed to whether the policy was voided by the written answers made by the insured to Questions 16(a), 18, and 23 of the application. These questions and answers were as follows:

‘16(a). Have you ever been told that you had any heart trouble?’

(Answer) ‘No.’

‘18. Have you ever had any of the following complaints or diseases?

‘Apoplexy, Appendicitis, Asthma, Bronchitis, Cancer or other Tumor, Consumption, Diabetes, Disease of Heart, Disease of Kidneys, Disease of Liver, Disease of Lungs, Fistula, Fits or Convulsions, Goitre, Habitual Cough, Insanity, Colic, Jaundice, Paralysis, Pleurisy, Pneumonia, Rheumatism, Scrofula, Syphilis, Spinal Disease, Spitting of Blood, Varicose Veins. If yes, give particulars, dates and duration.’

(Answer) ‘No.’

‘23. What clinics, hospitals, physicians, healers or other practitioners, if any, have you consulted or been treated by, within the past five years? If none, so state.’

(Answer) ‘Don't remember when last ill.’

The position of appellant throughout the trial and on this appeal has been that the answer to each of the foregoing three questions was false, was made with intent to deceive, or materially affected the acceptance of the risk or the hazard assumed by the company.

In support of that position, appellant relied upon the following evidence: Appellee, beneficiary under the policy, submitted proofs of death following the death of her husband, showing, among other things, that the cause of her husband's death was coronary occlusion, that in answer to the question, ‘When did the deceased first consult a physician for his last illness?’ she had replied, ‘Consulted doctor about May, 1941,’ and that in answer to the question, ‘Names and addresses of all physicians who attended the deceased during his last illness and during three years prior thereto:’ she answered, ‘Dr. A. Schwartzman, 1620 Sixteenth Street, N.W., about May, 1941.’ On cross-examination, appellee also testified that in May, 1941, insured was ill and Dr. J. Lewis Riggles and Dr. A. S. Schwartzman were called in on the same day to attend him and that both of these doctors also attended the insured on other occasions during May, 1941; that insured had been treated by Dr. T. C. McDougal in Illinois before coming to Washington. The testimony of Dr. McDougal was taken by deposition and showed that he was a physician in La Grange, Illinois, engaged in general practice, that the insured had consulted him and he treated insured on October 25, 1936, February 68 1938, April 8, 1938, and May 9, 1939. Upon objection of plaintiff, the trial judge refused to permit the defendant to place before the jury the remaining questions and answers contained in this deposition on the ground that they were privileged, although they were later offered in evidence by appellee and received and read to the jury.

Dr. A. S. Schwartzman, a Washington physician, testified that he had treated the insured professionally during May, 1941, on several occasions, at home and on one occasion at the doctor's office. This doctor was then asked for what diseases he had treated the insured, whether the witness had advised the insured that he had heart trouble, what symptoms he had exhibited, and similar questions, but the trial judge sustained objections made on behalf of appellee that answers called for a disclosure of confidential information.

Mrs. Effa Powell, a sister of the insured, testified that in December, 1940, the insured and his wife and child came to live with her at her home, where they remained until June, 1941; that one day in May, 1941, the insured came home saying he was ill; that witness put him to bed and called in Dr. Riggles, who examined him and told him that he must remain absolutely quiet and in bed and gave him a hypodermic. She also testified that after Dr. Riggles left the house she went to the basement to do some washing and while there heard a noise upstairs and found the insured lying on the bathroom floor with his feet against the door so it was difficult for her to get into the room. Her testimony also was that she and appellee were unable to carry the insured and that, therefore, witness had gotten a cab driver who assisted in putting the insured back to bed. She further testified that Dr. Riggles was then called but was unable to come and that Dr. Schwartzman had been called and examined the insured and told him he must remain in bed and be absolutely quiet. Both Dr. Riggles and Dr. Schwartzman treated the insured on other occasions during the following week or ten days, each attending the insured about three times. During these subsequent treatments, both Dr. Riggles and Dr. Schwartzman told the insured in her presence that he had a heart condition and that unless he took care of himself and stopped smoking and drinking he would not live a year. Appellee was not present when the doctors made these statements to the insured. The insured was in bed about ten days to two weeks after this attack and was weak, and at times had coughing spells. This witness further testified that the insured had told her that he had spells of fainting while in Illinois and on one occasion had cracked three ribs. She also testified that the insured had been in the Army but had been discharged because of a heart condition, and during the period between December, 1940, and May, 1941, while he was living at her house, he had often told her he knew he had a bad heart and he was not long for this world.

There was also received in evidence a certified copy of the original World War I draft registration card signed by the insured on June 5, 1917, at Martinsburg, West Virginia, containing, among other things, the following:

‘Do you claim exemption from draft (specify grounds)?’

(Answer) ‘Heart trouble.’

As opposed to the foregoing evidence in behalf of appellant, appellee offered the following:

Appellee had never been told by Dr. Riggles or Dr. Schwartzman that the attack which the insured had in May, 1941, was a heart attack. She did not know for what illnesses or diseases the insured had been treated by those doctors, but she denied that the insured had ever had any kind of heart condition or heart trouble. Since his illness of May, 1941, the insured did not lose any time on account of illness. She did not testify regarding the statement of the insured's sister that following the visit of Dr. Riggles in May, 1941, the insured had been found lying on the bathroom floor and that appellee and the sister of the insured had been unable to carry the insured back to his bed, necessitating the calling of a taxi driver.

There was received in evidence Part C of the original application for insurance, executed by the insured, showing that the insured had been examined in connection with the application by Dr. E. C. Schneider on August 4, 1941, reciting in substance that at the time of such examination the insured's general appearance as to health was ‘good’; that the rate and quality of his pulse was ‘72 good’; that his pulse was not irregular or intermittent; that he had not found any evidence of disease or impairment of the heart; that the insured's blood pressure, systolic, was 120; diastolic, fourth phase, was 82; and diastolic, fifth phase, 80; that there was no evidence of arteriosclerosis. This same doctor testified at the trial in substance that he had examined the insured as shown by the application, found nothing wrong with him, and that he found his pulse, blood pressure, and heart good. On cross-examination he testified that the examination made by him of insured's heart was made only with a stethoscope and that with this means of examination only leakage of the valves or a heart murmur or some other involvement could be discovered; that a coronary occlusion would not be discovered by this form of examination; and that there was nothing inconsistent with his findings on the examination and the existence of a coronary occlusion at the same time.

Mrs. Nellie F. Barnett, a former trained nurse and resident-manager of the apartment house where insured died, testified in substance that the insured had lived there for about one year prior to his death and she saw him go out every day dressed in working clothes such as are worn by persons who do heavy work. He was a contractor and carpenter. When he would come in from work his clothes...