Russo v. Metropolitan Life Ins. Co.

• Decision Date: 05 January 1939
• Citation: 125 Conn. 132,3 A.2d 844
• Court: Connecticut Supreme Court
• Parties: RUSSO v. METROPOLITAN LIFE INS. CO.

3 A.2d 844

125 Conn. 132

RUSSO v. METROPOLITAN LIFE INS. CO.

Supreme Court of Errors of Connecticut.

January 5, 1939

Appeal from Court of Common Pleas, Fairfield County; Samuel Mellitz Judge.

Action by Benvenuto Russo against the Metropolitan Life Insurance Company to recover the amount of a life insurance policy under which plaintiff was beneficiary. Verdict and judgment for plaintiff after trial to a jury, and defendant appeals.

Error and new trial ordered.

Philo C. Calhoun and Daniel F. Wheeler, both of Bridgeport, for appellant, (defendant).

Daniel E. Brennan and Daniel E. Brennan, Jr., both of Bridgeport, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

BROWN Judge.

The plaintiff is the beneficiary upon a life insurance policy issued September 1, 1936, to her mother, Vienna Santanelli, who died April 27, 1937, of myocarditis and arteriosclerosis. On August 17, 1936, in her application for this insurance, by its terms made part of the policy and the basis of the defendant's obligation, the insured made this statement among others: ‘ 18. Have you been attended by a physician during the last five years? If yes, give names of complaints, dates, how long sick, and names of physicians. No.’ The jury's verdict was for the plaintiff. The defendant moves that it be set aside, claiming that the answer to the above question constituted a material representation, which the uncontroverted evidence established to be false, and that the jury could not reasonably have found otherwise. The court denied the motion and the defendant has appealed.

That the representation was material to the risk as a matter of law cannot be questioned, and if false it prevented a recovery on the policy. State Bank & Trust Co. v. Connecticut General Life Ins. Co., 109 Conn. 67, 70, 145 A. 565. Three different portions of the evidence are to the effect that the insured was attended by a physician during the five years next preceding the application. The first is the physician's statement, a part of the proofs of death, plaintiff's Exhibit B. This states that the subscriber, Dr. Kisiel, had treated the insured before her last illness for common colds since 1935; that the immediate cause of death was arteriosclerosis and chronic myocarditis; that he was consulted in April, 1934, by the welfare department as to the condition which either directly or indirectly caused death; and that April, 1934, was the ‘ date of [his] first visit in [her] last illness.’ The second is the certificate of death, defendant's Exhibit 2, stating that Dr. Kisiel ‘ attended deceased from March--, 1935, to April 24, 1937,’ and giving the causes of death as above. The third, is Dr. Kisiel's testimony as defendant's witness that on twelve dates specified during the period February to December, 1935, he treated her upon complaints of weakness, dizziness, and shortness of breath, for a disease he diagnosed as general hardening of the arteries and chronic myocarditis. While the evidence that the doctor had attended the insured during 1934, 1935 and 1936 for the malady of which she died, stood uncontradicted, the court denied the defendant's motion, because ‘ the verdict indicates that the jury did not accept Dr. Kisiel's testimony as to his having attended the insured,’ and it being their function to pass on his credibility, their conclusion should not be disturbed. That the defendant was paying Dr. Kisiel $100 per day for appearing as a witness, elicitated on cross-examination, is the only fact disclosed by the printed record tending to discredit his testimony. As further cross-examination made clear, his recital of the specific dates when he attended the insured, together with her complaints, blood pressure, and his diagnosis then noted, was predicated on his office memoranda which the plaintiff made no attempt to impugn. Assuming, however, that the jury having sized him up, as was their right, were warranted in rejecting his oral testimony given in court, this was not true of the evidence contained in Exhibit B and Exhibit 2.

These statements, made in the regular discharge of the doctor's duty as attending physician, which, so far as appears, were made prior to any employment by the defendant or arrangement to testify for it, stand uncontradicted and unexplained upon the record. They constitute not only unimpeached, but independent evidence of the vital fact that the insured, contrary to the express representation in her application had been attended by this doctor within the five year period, for the serious malady which later caused her death. The official Massachusetts printed form of the certificate of death, Exhibit 2, calling as it does for certification by the doctor of the period of his attendance upon the deceased, having been received without limitation or objection, sufficiently indicates that this was information required by law. It therefore constituted evidence of the truth of the fact stated. Hennessy v. Metropolitan Life Ins. Co., 74 Conn. 699, 706, 52 A. 490; Branford Trust Co. v. Prudential Ins. Co., 102 Conn. 481, 487, 129 A. 379, 42 A.L.R. 1450; Gett v. Isaacson, 98 Conn. 539, 543, 120 A. 156.

The physician's statement in Exhibit B also afforded independent evidence to the same effect. The policy in this case contained no provision as to the manner in which proof should be made of the death of the insured. The plaintiff filed proofs of death upon blanks evidently furnished by the insurer, one of which was the statement of the attending physician. The blank had at the top this provision: ‘ The following statement of the physician is submitted by me as part of said proofs' under the policy in question, and then followed the plaintiff's signature. Where the beneficiary in an insurance policy files as a part of the proofs of death such a certificate as this, under the circumstances of this case it amounts to an approval by him of the statements in it as correct and should be received in evidence against him as an admission by adoption. 2 Wigmore, Evidence, 2d Ed., § 1073, p. 570. As an admission it affords evidence against him which, in view of its nature and purpose, in the absence of contradictory evidence, explanation or qualification, is entitled to great weight. In notes 17 A.L.R. 366, 42 A.L.R. 1455, 93 A.L.R. 1342, 96 A.L.R. 335, many cases are gathered which deal with the admissibility and effect of such statements and these disclose a considerable variation in the conclusions reached. Professor Wigmore, in a note to the section from which we have quoted, says (p. 571): ‘ The question ought to be, in each case, whether the beneficiary has in fact adopted the statements as his own; there can be no general rule for all cases.’ In this case the plaintiff was under no contractual obligation to file with the defendant a physician's certificate as to the cause of death and the use of blanks furnished by the company so far as appears was a voluntary act on her part. Under these circumstances the statements in the physician's certificate constitute evidence against her which, in no way contradicted or explained, must be accorded all the weight of a considered admission made out of court. Perrelli v. Savas, 115 Conn. 42, 44, 160 A. 311.

Since it is undisputed that the insured accepted the...