Plumb v. Penn Mut. Life Ins. Co.

• Decision Date: 30 December 1895
• Citation: 108 Mich. 94,65 N.W. 611
• Court: Michigan Supreme Court
• Parties: PLUMB v. PENN MUT. LIFE INS. CO.

65 N.W. 611

108 Mich. 94

PLUMB v. PENN MUT. LIFE INS. CO.

Supreme Court of Michigan

December 30, 1895

Error to circuit court, Wayne county; Robert E. Fraser, Judge.

Action by Ida G. Plumb against the Penn Mutual Life Insurance Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Fraser & Gates, for appellant.

Alfred Lucking, for appellee.

LONG J.

Plaintiff brings this suit upon an insurance policy issued by the defendant company upon the life of her mother, Samantha L Plumb, of Detroit, in the sum of $1,000. Upon the trial plaintiff had verdict and judgment. The application was made in writing, and taken by a Mr. Hodge, who had arranged with the defendant company to procure insurance for it. The application was written December 16, 1893, but the medical examination was not had until January 16, 1894, and the policy was dated as of that date. The receipt for the first premium was countersigned by the Michigan state agent of the defendant on January 22d, and left in the office of the company at Detroit until January 30th, when it was taken by Mr. Hodge, and handed to the insured. The insured died February 6th following. To the declaration filed the defendant pleaded the general issue, and gave notice under its plea that it would show upon the trial that in and by said application the insured expressly warranted and agreed that she was then in good health, and ordinarily enjoyed good health, and that in the statements and answers in said application for insurance no circumstances or information had been withheld touching her past or present state of health and habits of life with which said defendant ought to be made acquainted, and that said statements and answers in said application, as well as those made to defendant's medical examiners, should constitute the application, and be the basis of said policy; and that said insured in said application falsely and fraudulently stated and answered in substance, as follows: That she was in good health; that it had been three years since she had been attended by a physician, or had professionally consulted one; that the disease for which such physician was so consulted was la grippe; that such physician was Dr. Mills, and his residence Port Huron, Mich.; that said Dr. Mills was her said medical adviser and family physician; that she had not had any illness or disease other than as stated in said application; and that all the statements contained in said application were warranted to be true, and that the same were offered to the defendant as a consideration for said contract of insurance. But defendant claims, at the time of the making of said application the insured was not in good health; that on divers days and times within such three years, and from June, 1890, to October, 1893, she had been attended by and had professionally consulted divers physicians, especially O. M. Stephenson, of Port Huron, Mich., and that said disease for which said consultation and attendance were had was not la grippe, but another and different disease; that all the above-mentioned statements and answers were false and fraudulent; that by means thereof the defendant made and executed said policy of insurance, being deceived and misled thereby. It was further claimed by the notice that the defendant would prove upon the trial that its liability, by the express terms and provisions of the policy, was upon the following other conditions, to wit: That said insured should be in good health at the time of the delivery to her of said policy, but that before and at the time of the delivery thereof, to wit, January 30, 1894, the insured was not in good health, and that, on the contrary thereof, she was in bad health, and was ill and sick with divers diseases, with disease whereof she did afterwards die, to wit, peritonitis; and that said insured did not disclose the same to the defendant, but fraudulently and wrongfully obtained possession of said policy contrary to the terms and conditions thereof. The policy provided that the $1,000 should be paid upon the following conditions, to wit: "*** The insured to be in good health at the time of the delivery to him of this policy." On the trial the plaintiff gave evidence tending to show that the insured was in good health on January 30th, being the date on which the policy was actually delivered to the insured. The defendant gave testimony tending to show that the insured was not in good health on that date; and the court, in its charge to the jury, left that question to them as follows: "If Mrs. Plumb was not seriously ill on the 30th of January, 1894, then there is nothing in this claim or defense on the part of the defendant. The question as to whether this woman was seriously ill at the time when this policy was delivered to her is a matter for you to determine under the evidence. You will remember what the evidence was as to what was the cause of her sickness, what was the character of her sickness, and what condition she was in at the time when this policy was delivered; and I charge you that this policy was delivered, under the law of this case, at the time it was actually transferred to her, which was on the 30th day of January, 1894; not when the policy was made out, not when it was received at the office here in Detroit, but when it was delivered to her by the agent or solicitor of the defendant in this case, Mr. Hodge. If at that time you shall find under the evidence in this case that the insured was afflicted with a serious illness that affected her sound bodily health, then that policy was delivered against its terms and conditions, and the delivery of that policy would be void; but if you shall find she was not afflicted with a serious illness affecting her bodily health, then she was in such a condition that the delivery of this policy would be authorized under its terms, and would, therefore, be binding upon the defendant." It appeared from the testimony introduced by the plaintiff that the insured did a hard day's work on Saturday, January 27th. She took some medicine that night, and on Sunday was not feeling well. She had some disturbance of the bowels Monday, Tuesday, and Wednesday, but was about the house, doing her work, and resting occasionally. On Friday inflammation of the bowels set in, and her case became serious on Saturday. She died the next Tuesday. Dr. Judson, her attending physician, testified that on Tuesday-the day the policy was delivered to her-she had some pain in the bowels, but it was nothing serious; that he first regarded her as seriously sick on the Saturday following. Mr. Hodge, the defendant's agent, who was a boarder in the house, testified that when he gave her the policy she was slightly indisposed, but that there was nothing but what would be commonly called good health, and that she was around the house as usual. The plaintiff testified that her mother was a little indisposed on the 30th, but was up and around the house, and got breakfast and dinner as usual, and that it was not until the Saturday following that she considered her seriously ill; and the husband of the deceased testified that she was not seriously ill until Saturday. In Brown v. Insurance Co., 65 Mich. 306, 32 N.W. 610, the court instructed the jury that the "sound health evidently meant in the application is a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system seriously; not a mere temporary indisposition, which does not tend to weaken or undermine the constitution of the assured." That charge was approved by this court. See, also, upon this question: Pudritzky v. Supreme Lodge, 76 Mich. 428, 43 N.W. 373; Hann v. National Union, 97 Mich. 513, 56 N.W. 834. In the present case the court properly left the question to the jury whether the insured was in good health at the time of the delivery to her of the policy.

In regard to the claimed untrue statements contained in the application, it appears the medical examination was made by Dr. Lyster, of Detroit, who wrote down her answers to the questions. The printed questions in the medical examination and her answers, were as follows: "(1) How long since you were attended by a physician, or professionally consulted one? A Three years. (2) For what disease? A. La grippe. (3) Give the name and...