Mut. Life Ins. Co. of N.Y. v. Geleynse

• Decision Date: 14 February 1928
• Docket Number: No. 34.,34.
• Citation: 241 Mich. 659,217 N.W. 790
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. GELEYNSE.
• Court: Michigan Supreme Court

241 Mich. 659

217 N.W. 790

MUTUAL LIFE INS. CO. OF NEW YORK

v.GELEYNSE.

No. 34.

Supreme Court of Michigan.

Feb. 14, 1928.

Appeal from Circuit Court, Genesee County, in Chancery; Edward D. Black, Judge.

Suit by The Mutual Life Insurance Company of New York against Mary Geleynse. From a decree of dismissal, plaintiff appeals. Reversed and rendered.

This bill is filed to cancel a policy of insurance on the life of Dingenis Geleynse, husband of defendant, on the ground of misrepresentation of material facts in its procurement. After the death of Mr. Geleynse plaintiff learned of facts which it claimed voided the policy, tendered back the premiums, and filed this bill. The representation appear in the application dated November 21 1924, a photostatic copy of which was attached to the policy, as answers to questions therein found, as follows:

‘16. What illnesses, diseases, injuries, and surgical operations have you had since childhood?

‘Name of disease, etc., fever (unknown cause). Number of attacks, 1. Date of each, 12 years ago. Duration, 2 weeks. Complications, none. Any remaining effects, none. Date of complete recovery, 12 years ago.

‘Name of disease, etc., amputation of third, fourth, and fifth fingers and outer part of hand (right). Number of attacks, caught in gears. Date of each, 10 years ago. Duration, 3 months. Complications, none. Any remaining effects, deformity. Date of complete recovery, 10 years ago.

‘17. State every physician or practitioner who has prescribed for or treated you, or whom you have consulted in the past five years for any ailment, serious or not serious.

‘Name of physician or practitioner, Dr. J. G. R. Manwearing. Address, Flint, Mich. When consulted, 10 years ago. Nature of complaint. Give full details above under Q. 16. Amputation of part of right hand.

‘Name of physician or practitioner, Dr. Halligan. Address, Flint, Mich. When consulted, 12 years ago. Nature of complaint. Give full details above under Q. 16, Fever.

‘18. Have you stated in answer to question 16 all illnesses, diseases, injuries, and surgical operations which you have had since childhood? (Answer yes or no.) Yes.

‘19. Have you stated in answer to question 17 every physician and practitioner consulted during the past 5 years and dates of consultations? (Answer yes or no.) Yes.

‘20. (a) Are you in good health? Yes. * * *

‘26. Have you ever raised or spat blood? No.'

The proofs show and without dispute that shortly before insured made this application he had consulted and taken treatments of Dr. Freeman, an osteopathic physician, covering quite a period. He first consulted Dr. Freeman on September 17, 1924, and informed the doctor that he ‘had been vomiting quite frequently, and a few times it was bloody.’ The doctor diagnosed his trouble as chronic gastritis and treated him accordingly, the treatments being on September 18, 20, 22, 25, 27, 29, and October 2, 4, 6, 8, 11, 16, 18, 19, and 20. Insured worked while taking the treatments. He improved under them and was advised to continue them, which advice he declined to follow. He died about a year later from cancer of the stomach. The trial judge was in serious doubts as to the proper disposition of the case, but finally entered a decree dismissing the bill.

Argued before the Entire Bench.Miller, Canfield, Paddock & Stone, of Dtroit, for appellant.

George W. Cook, of Flint, for appellee.

FELLOWS, J. (after stating the facts as above).

It is first insisted that, as matter of law, osteopaths are not physicians, hence the answer to questions 17 and 19 are not false. But in both questions the words ‘physician’ and ‘practitioner’ are used, and turning to the act regulating the practice of osteopathy (section 6740 et seq., C. L. 1915) it will be noted that they are referred to in the title as ‘practitioners,’ and in the body of the act as osteopathic ‘physicians.’ To the average layman they and the ‘regulars' are all doctors who are consulted in case of illness, and it is doubtful if he ever makes in his own mined the fine distinction in which we are asked to indulge. In People v. Lewis, 233 Mich. 240, 206 N. W. 553, 42 A. L. R. 1337, we affirmed the conviction of a chiropractic practitioner who administered no medicine or drugs, for a violation of the medical practice act (section 6724 et seq., C. L. 1915). It was the duty of the insured, in answer to questions 17 and 19, to inform the company of consultation with and treatments by osteopathic physicians and practitioners as well as by ‘regulars.’ The average layman does not differentiate between them, and, in view of the form of the question, we should not.

It is also insisted that the illness of insured for which Dr. Freeman treated him was not serious, and that his representations were made in good faith. Defendant's counsel rely on the following cases: Brown v. Metropolitan Life Ins. Co., 65 Mich. 306, 32 N. W. 610,8 Am. St. Rep. 894;Hann v. National Union, 97 Mich. 513, 56 N. W. 834,37 Am. St. Rep. 365;Plumb v. Penn Mutual Life Ins. Co., 108 Mich. 94, 65 N. W. 611;Tobin v. Modern Woodmen of America, 126 Mich. 161, 85 N. W. 472;Pudritzky v. Supreme Lodge, 76 Mich. 428, 43 N. W. 373;Blumenthal v. Insurance Co., 134 Mich. 216, 96 N. W. 17,104 Am. St. Rep. 604; and section 17, c. 2, pt. 3, Act 256, Public Acts 1917. All of the cases were actions at law. In the main, they involved the question of whether a case was made for the jury, and likewise, in the main, they involved representations of ‘good health’ or ‘sound health.’ None of them were cases where we were required to find the facts as well as decide the law. It is quite easy to see that one may regard himself in good health, physically fit, and so honestly state, although he is as matter of fact afflicted with a fatal malady. But the consultation with a physician, the taking of 15 treatments for an ailment are facts, and facts occurring so recently before the application was made in the instant case as to make it difficult to understand how in a good-faith effort to truthfully and fully answer the questions they were overlooked. As was said by the Supreme Court of the...