Scharlach v. Pacific Mut. Life Ins. Co.

• Decision Date: 29 November 1926
• Docket Number: No. 4888.,4888.
• Citation: 16 F.2d 245
• Parties: SCHARLACH v. PACIFIC MUT. LIFE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

16 F.2d 245 (1926)

SCHARLACH v. PACIFIC MUT. LIFE INS. CO.

No. 4888.

Circuit Court of Appeals, Fifth Circuit.

November 29, 1926.

J. D. Wheeler, of San Antonio, Tex. (R. J. Boyle, Hill Grover, J. D. Wheeler, and Boyle, Ezell & Grover, all of San Antonio, Tex., on the brief), for plaintiff in error.

John H. Cunningham and A. N. Moursund, both of San Antonio, Tex. (John C. Wall and Cunningham & Moursund, all of San Antonio, Tex., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This was an action on two policies of insurance alleged to have been issued on the life of Meyer Scharlach, and which were delivered to him on May 12, 1923. Each of the policies contained the provision that there shall be no liability under it until it shall be manually delivered to the applicant during his lifetime and good health. The claims asserted were resisted on the grounds: (1) That the deceased was not in good health when the policies were delivered to him; and (2) that the policies were issued in reliance on the truth of specified statements in deceased's application therefor, which statements were material to the risk, were known by the deceased to be false, and were made by him willfully and with intent to defraud the insurance company.

When the case was here on a former writ of error, it was decided that, upon the plaintiff making out a prima facie case by proof that the policies were delivered to the deceased and were in his possession at the time of his death, the burden was on the insurance company to prove that the deceased was not in good health when the policies were delivered. Scharlach v. Pacific Mut. Life Ins. Co. (C. C. A.) 9 F.(2d) 317. Upon the conclusion of the evidence the court instructed the jury to bring in a verdict in favor of the insurance company. Remarks which accompanied this action of the court showed that it was a result of the conclusion that the evidence showed that Scharlach was not in good health when the policies were delivered. The judgment presented for review was rendered pursuant to the verdict which the court directed.

Uncontroverted evidence showed the following:

The deceased, who lived in San Antonio, on March 15 or 16, 1923, called on a practicing physician of that city, Dr. Manhoff, and complained of dizziness. On that occasion Dr. Manhoff did not discover from deceased's appearance that he had any disease, gave him no treatment, and "turned him loose with advice to take care of his eyes, and as to the movement of his bowels." On April 5, 1923, deceased came to Dr. Manhoff again, stating that his dizziness became worse, and that when he made any effort like climbing stairs he had shortness of breath. Dr. Manhoff then made an examination into deceased's condition, found that his red blood cells were low in number, being about half what they should be, and that he was suffering from severe secondary anæmia, directed him to be examined by specialists, treated him actively for a period of about two or three weeks, and then, as stated by Dr. Manhoff, "after the end of April and early in May — May 12th — I got signs of definite failing of the heart, and he wanted to go elsewhere for treatment, Cincinnati, I believe. * * * He did not remain in San Antonio and continue to take treatment from me after May 12th."

On April 12, 1923, deceased consulted another San Antonio physician, Dr. Sigmund Burg, whose son, Dr. Edward M. Burg, then made a blood count of deceased's blood, which count showed that deceased was "suffering from anæmia to a marked degree." On April 30, 1923, deceased went to Altenheim, the Hermann Sons' Home, near Comfort, Tex., "because," as stated by deceased's widow, the plaintiff in the suit, "Dr. Manhoff told him he was in a run-down condition, and he thought a trip to Comfort would do him a lot of good." Soon after May 12th, deceased went to Cincinnati to be examined. He then went to New York and was examined there. From New York he went to Mayo Bros. at Rochester, Minn. He arrived at Mayo Clinic for examination July 9, 1923, was operated on there by Dr. Judd on July 14, 1923, and died on July 26, 1923. The examination at the Mayo Clinic showed that he had cancer of the stomach and secondary anæmia. The operation disclosed an ulcer which was "about three inches in diameter, with a large crater." In the operation about two-thirds of the stomach was removed.

Dr. Manhoff testified: "At the time he came to me on April 5, 1923, * * * he was not in good health. * * * My diagnosis of his condition, on or about May 12th, was severe secondary anæmia, almost pernicious anæmia; that condition indicates that a man's blood is poor and cannot nourish the system, and that unless the condition is corrected he will die. My opinion is that he was a very sick...