Mutual Ben. Life Ins. Co. v. Robison, 314.

• Decision Date: 13 November 1893
• Docket Number: 314.
• Citation: 58 F. 723
• Parties: MUTUAL BEN. LIFE INS. CO. v. ROBISON.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F. 723

MUTUAL BEN. LIFE INS. CO. v. ROBISON.

No. 314.

United States Court of Appeals, Eighth Circuit.

November 13, 1893

Francis B. Daniels, for appellant.

Nathan E. Utt, (Utt Bros. & Michel, on the brief,) for appellee.

Before CALDWELL and SANBORN, Circuit Judges.

CALDWELL Circuit Judge.

This is a suit in equity commenced on the 23d of June, 1891, in the United States circuit court for the northern district of Iowa, by the appellant, the Mutual Benefit Life Insurance Company, hereafter called the 'Company,' against Charles W. Robison, the appellee, to cancel four policies of insurance on the life of the appellee of $5,000 each, issued by the company to him March 17, 1890. The circuit court dismissed the bill for want of equity. The opinion of Judge Woolson is reported in 54 F. 580.

The application for the insurance was taken in Dubuque, Iowa where the assured then resided, by the agents of the company in that state. The application consists of four parts: First the application to be signed by the applicant for insurance second, questions to be asked by the agent and answered by the applicant; third, questions to be asked by the medical examiner of the company and answered by the applicant, the answers to be written by the examiner; fourth, questions asked the examiner, to be answered by him. A clause of the application expressly provides that the answer to the question which the medical examiner is to ask 'must be written by one of the company's examiners,' who is instructed to 'see that the answers are free from ambiguity, and that diseases are distinguished from mere symptoms;' and referring to a long list of diseases among which is 'spitting of blood,' he is directed to 'ask concerning each and give particulars under head of remarks.' The application signed by the assured contains this provision: 'I agree that the answers given herewith to the questions of the agent and examiner, which I declare and warrant to be true, shall be the basis of my contract with the company;' and the policies contained this clause: 'This policy does not take effect until the first premium shall have been actually paid, nor are agents authorized to make, alter, or discharge this or any other contract in relation to the matter of this insurance, or to waive any forfeiture hereof. * * *'

For about three years before the assured was examined, the local agent of the company, Charles J. Brayton, had been soliciting him to take out a policy in the appellant company. The assured finally consented to take out a policy for $5,000, and by direction of the agent went to the office of Dr. G. M. Staples, the medical examiner of the company, to be examined. There he met Brayton, the local agent, T. F. McAvoy, the state agent, and Dr. G. M. Staples, the medical examiner, of the company. It is conceded that these gentlemen were the agents of the company, and there is nothing to show that they were not clothed with all the powers and authority which ordinarily pertain to insurance agents in their respective positions. Dr. Staples had been the medical examiner of the company at Dubuque for 25 years. He had also been the family physician of the assured for many years, and had known him from childhood.

The ground set up in the original bill for a cancellation of the policies was that the answer to the fifteenth question asked by the medical examiner was 'untrue, false, and fraudulent.' An amended bill was filed, alleging that the answer to the eleventh question asked by the medical examiner was false and fraudulent. That question was: '(a) For what have you sought medical advice during the past seven years? (b) Dates? (c) Duration? (d) Physicians consulted?' The answer to this question, as written by the medical examiner, was: '(a) Debility from overwork. (b) Feb., 1888. (c) 10 days. (d) G. M. Staples.' The answer to this question, as given by the applicant, included the name of Dr. M. H. Waples as one of the physicians he had consulted. The fifteenth question was, 'Have you ever had any of the following?' Here follow the names of 40 diseases, and among them 'spitting of blood.' To this question the applicant made this answer to the examiner:

'On October 17, 1887, when starting for my office, Dr. S. H. Guilbert, who was attending my wife in her approaching confinement, gave me directions that he would telephone me as soon as I was needed, and to hurry home, bringing with me a prescription of chloroform. I went to my office, buying the chloroform on the way. A little after 2 o'clock, the telephone came for [me] to come instantly. I went to the horse stall in the rear of my office, where I generally kept my horse, and found that some one was using it. I next hurried to the corner of Jones and Main streets, hoping to catch a street car, and thereby reach my home quickly. I was then living at 1468 Main street. Not finding a street car in sight, my only recourse was to get home as quickly as my legs would carry me; and I started up Main street, running for a square or two at a time, and then resting by walking for another square, and kept up that pace, coming up Main street on the west side of the street. Between Tenth and Eleventh, on Main street, I crossed the street by running, and about 50 feet from the corner of Eleventh I jumped across the curbstone. As I did so, I tripped on the curb, and fell. I had hardly picked myself up, and started again, when I noticed that I had expectorated a mouthful of blood. As this was the first time I had ever expectorated blood without knowing where it came from, I was very much shocked, and frightened beyond measure. I turned, and ran as fast as I could to the nearest doctor's office, which was Dr. Waples, a square down, and on the opposite side. I went in, found him there, and begged him to tell me what was the matter. He said that I was very much excited; to sit down and try and compose myself; that the blood, probably, did not amount to much. He gave me a drink of water, and tried to soothe my agitation as much as possible. After staying there a short time, and finding that the bloody expectoration had stopped, I started to go home. * * * After narrating what I have just stated to Dr. Staples, in his office, on the 19th of October, 1887, he began an examination of my throat and lungs. He made what appeared to me a careful examination of my throat and lungs. He said he saw in my throat a dilapidated blood vessel, that looked as if it had bled away. I asked him if, in his opinion, there was any question but that this blood came from this blood vessel in my throat. He assured me that it did not amount to anything, and to go on about my business; that he had similar cases in his office every day,--of perfectly healthy men expectorating blood from their throat.'

The applicant having made this answer, Dr. Staples, the medical examiner of the company, himself testifies that:

'I recollect that I told him that the question, 'spitting of blood,' had a definite significance; that it meant hemorrhage from the lungs or bronchial tubes; and that the spitting of blood, as described by him and as known by me, because I was consulted by him, was manifestly not hemorrhage. I explained to him that this question, 'spitting of blood,' was, in my judgment, as medical examiner of the company, it was put there for the purpose of determining whether there was any evidence of consumption; that the question could not be answered categorically. If you meant spitting of blood from the mouth, probably no person living but what has spit some blood on some occasion, when a tooth has been extracted, or after having the nosebleed. Spitting of blood did not mean that. It meant as evidence of haemoptysis, or diseases of the pulmonary organs. I said that it was not necessary for him to state that he had had spitting of blood; that the question did not imply the spitting of blood, as he had reported it.'

And the examiner thereupon directed his son, who was acting as his amanuensis, the examiner himself having pen paralysis, to write the word 'No' as the answer to this question, assuring the applicant that that was the proper answer to be drawn from the facts which he had narrated, and which were known to the examiner himself to be true. The applicant at the same time narrated to the local and the state agents of the company all the facts connected with the incident of spitting of blood, as he had stated them to the medical examiner, and asked them if the answer which the examiner had directed him to make to this question was the proper one, and they assured him that it was. The assured, the medical examiner, and the two agents of the company are agreed in their testimony as to what took place. In answer to the question whether he examined the applicant's lungs at the time he examined him for insurance, Dr. Staples says:

'I did as thoroughly as possible; stripping him, and examining him by ear and by use of the stethoscope. I had been Mr. Robison's physician, and had examined him from time to time for various little troubles; and, when I came to examine him for life insurance, I made a most thorough examination of him. I made a more thorough examination of him than of any one, I took three days to satisfy myself about the case, and I positively believe there was no disease of the lungs, and I wanted to satisfy myself whether there was. After making this examination, I came to the conclusion that, so far as his lungs were concerned, they were sound.'

So well satisfied were the agents of the company that the assured was a good risk that they pressed the examiner to report him as a preferred risk, which, however, he declined to do; and they persuaded the assured to increase the insurance from $5,000, as originally contemplated, to $20,000.

The...