Proctor v. Metropolitan Life Ins. Co.

• Decision Date: 10 July 1902
• Docket Number: 4-1902
• Citation: 20 Pa.Super. 523
• Parties: Proctor v. Metropolitan Life Insurance Company, Appellant
• Court: Pennsylvania Superior Court

20 Pa.Super. 523

Proctor v. Metropolitan Life Insurance Company, Appellant

No. 4-1902

Superior Court of Pennsylvania

July 10, 1902

Argued February 11, 1902

Appeal by defendant, from judgment of C.P. Tioga Co.-1900, No. 246 on verdict for plaintiff in case of Silas N. Proctor v Metropolitan Life Insurance Company.

Assumpsit upon a policy of life insurance. Before Morrison, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 2,042.83. Defendant appealed.

Error assigned among others was in submitting the case to the jury.

E. N Willard, of Willard, Warren & Knapp, with him David Cameron for appellant. -- The case was for the court: Lutz v. Metropolitan Life Ins. Co., 186 Pa. 527; March v. Metropoliton Life Ins. Co., 186 Pa. 629; United Brethren Mut. Aid Society v. O'Hara, 120 Pa. 256; Mengel v. N.W. Mut. Life Ins. Co., 176 Pa. 280; Commonwealth Mutual Fire Ins. Co. v. Huntzinger, 98 Pa. 41; Wall v. Royal Society of Good Fellows, 179 Pa. 355; Smith v. N.W. Mut. Life Ins. Co., 196 Pa. 314; Fidelity & Causalty Co. v. Alpert, 28 U.S.App. 393; Maier v. Fidelity Mut. Life Assn., 47 U.S.App. 322; McClain v. Provident Savings Life Assurance Society, 30 Ins. Law Jour. 438.

D. W. Baldwin, for appellee. -- The case was for the jury: Claflin Co. v. Querns, 15 Pa.Super. 464; Taylor v. Burrell, 7 Pa.Super. 461; Newman v. Edwards, 34 Pa. 32; Leary v. Electric Traction Co., 180 Pa. 136; Centre County Banking Co. v. Gephart, 175 Pa. 417; Brinser v. Longenecker, 169 Pa. 51; Serfass v. Dreisbach, 141 Pa. 142; Thomas & Sons v. Loose, Seaman & Co., 114 Pa. 35; Burkholder v. Stahl, 58 Pa. 371; Stewart v. Equitable Mut. Life Assn., 81 N.W. 782; Schwartz v. Metropolitan Life Insurance Co., 5 Pa.Super. 285; Quirk v. Metropolitan Life Insurance Co., 12 Pa.Super. 250; Keatley v. Travelers' Insurance Co., 187 Pa. 197; Barnes v. Fidelity Mutual Life Association, 191 Pa. 618; Smith v. Metropolitan Life Insurance Co., 183 Pa. 504; Dietz v. Metropolitan Life Insurance Co., 168 Pa. 504; McGraw v. Metropolitan Life Insurance Co., 5 Pa.Super. 488.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

ORLADY, J.

In March v. Metropolitan Life Insurance Co., 186 Pa. 629, it was held that under the Act of June 23, 1885, P. L. 134, a misrepresentation or untrue statement in the application, if made in good faith, shall not avoid the policy unless it relate to some matter material to the risk. Ordinarily questions of good faith and materiality are for the jury, and when the materiality of a statement to the risk involved is of itself of a doubtful character, its determination should be submitted to the jury, but it was never intended by the act of 1885, nor did that act assume to change the law in cases where the matter stated was palpably and manifestly material to the risk, or where it was absolutely and visibly false.

In Lutz v. Metropolitan Life Insurance Co., 186 Pa. 527, it was held that as a matter of course there could be no doubt that previous spitting of blood, or illness, or confinement to the house by reason of illness, or medical service, or the attendance of physicians, or having consumption, are subjects of the most serious and material character, and have always been so held by the courts. In cases that are manifest and free from all doubt, the act of 1885 makes no change in the law, and the duty of the court is now as it was before the passage of that act.

In the case before us the application is dated January 29, 1900, the policy was issued February 16, 1900, and the subject of insurance, Olivia E. Proctor, the wife of the plaintiff, died March 26, 1900. In the answers made by the applicant to the medical examiner of the company, which answers are declared, agreed and warranted to be full, true and correctly recorded, Olivia E. Proctor answered " No" to fifty-six interrogatories as to whether she had any of the diseases or abnormal conditions specified therein. To an interrogatory, " Have you ever had cancer or any tumor?" she answered, " No," and it is claimed by the company that this answer was known by her to be untrue. Another special question and answer is made the subject of defense: " 6. (a ) Name and residence of your usual medical attendant?

A. H. Cobb, Ulysses, Pa. (b ) When and for what have his services been requested? Once within a year; kidneys did not act properly." The defense urged on the trial was that it had been falsely represented that Olivia E. Proctor, at the date of said application, was in good health, when in truth and in fact she was suffering from an intro-uterine tumor. A request was made by the defendant for binding instructions, which was refused, and in order to determine whether her answer to the question as above quoted was true or not, the case was submitted to the jury as follows: " We say to you, if this was a misrepresentation it was a material one. The answer to this question was a material thing as to the contract of insurance. Now, if you find in 1898, or in October, 1899, or at the date of her application, January 20, 1900, that Olivia E. Proctor had a tumor, as described by Dr. Cobb, then the plaintiff cannot recover; and it is not material whether she or the plaintiff or either of them knew it or not."

It is conceded by the appellant that the important question is one of fact, to wit: whether Mrs. Proctor had a tumor at any time prior to the date of her application for insurance. This, so far as the oral evidence was concerned, was the only defense to the action. After a review of all the testimony we feel that this fact was not so clearly established by the testimony of Dr. Cobb as to make it the duty of the court to declare it to be an absolute and visible one which would avoid the policy. While he states, " I found a tumor lying mostly in the cavity of the vagina and extending up the inside of the uterus or womb," he qualifies the statement by adding, " Well, of course it is a little mite vague when you examine with just your finger, but as near as I can judge from the mouth of the womb down into the vagina it was probably two and a half inches long and I would think perhaps from one inch to one and a half inches thick through in diameter; it was of a rough nodulated condition or surface, and was of a bleeding lacerated character." He stated further that he told the husband (this plaintiff), that " There was a tumor there of some character, he was not positive as to the character of it." He testified that at a second examination in October, 1899, the conditions were found very much the same and that he advised the patient to go to a hospital for examination and treatment; and he also testified that at his last...