Mut. Life Ins. Co. v. Rain , 108 Md. 353 ( 1908 )

This is a suit upon a policy of life insurance issued by the appellant to the appellee upon the life of appellee's daughter, Rose Rain.

The policy is dated June 24th, 1905, and the death of the insured occurred on December 13th, 1906.

The amount of the insurance was $180, and the weekly premium of ten cents was paid regularly, for about seventy-five weeks, until the insured's death.

The "substantial defense" to the claim of the beneficiary for the amount of the insurance, is that at the time of the issuance of the policy, the insured had consumption of the lungs, of which it is contended, she subsequently died.

In support of this defense the appellant refers to the following provision contained in the policy of insurance: "Provided, however, that no obligation is assumed by this company, unless at the date of the actual delivery of this policy, the insured is in sound health;" and also to the evidence of Dr. Lilly, a witness for appellant who testified that in April, 1905, he made an examination of the insured's sputum and found therein the germs of tuberculosis.

It appears from the evidence in the case that Dr. Lilly first attended the insured on February 15th, 1905, at the Northeastern Dispensary in Baltimore, that subsequently, in April of the same year, he examined her sputum, and that he attended her but two or three times thereafter until her death in December, 1906.

The manner in which the examination of the sputa was made, does not appear, and the only evidence in the case to prove that the doctor was possessed of the requisite knowledge and skill to make a scientific and accurate examination was that he had graduated from the Maryland University some six years before, and had been practicing medicine for that length of time. He admitted on cross-examination that in his profession a good many mistakes were made, and though he denied that he had told the mother of the insured that the young woman had died of inflammation of the stomach, the mother swore most positively that he did so inform her, and that he never mentioned anything about her daughter having consumption.

The mother also testified that the doctor told her that if he had known her daughter's life was insured he would not have certified that she died of tuberculosis pulmonalis but "would have made it something different."

The doctor was present in the Court room at the time, it would seem, and yet did not go upon the stand and deny this statement.

We think that the statements and answers of the beneficiary in her application for the insurance on the life of her daughter were made warranties by the terms of the policy as well as by the application. (Mutual Life v. Thomas, 101 Md. 501), subject to the provisions of the Code (1906), Art. 23, § 196.

We also affirm what was said by this Court in the case ofMutual Life v. Mullen, 107 Md. 457, to the effect that whenever the statements and answers in the application are shown to be false by clear, convincing and uncontradicted evidence the Court may so rule as a matter of law. But in this case we do not think their falsity has been established by such testimony, and therefore this question of fact was properly submitted to the jury.

The Court refused all the prayers of the respective parties, and gave oral instructions to the jury which are set out in the record.

While we do not commend the giving of verbal instructions, deeming it much better practice to carefully reduce all instructions to writing, and in this form to submit them to the jury yet in this case we can find no substantial error in the instructions actually given by the trial Court.

It was suggested in the brief of counsel for the appellant, though not urged upon the Court, that the appellee stated in her application for the policy of the insurance, that no parent, brother or sister of the insured had died of consumption, and yet in the proof of death submitted by appellee, it appeared that a sister of the insured had died of that disease prior to the date of the application.

If properly established, such a fact would have been a very important one to be considered, but as the proofs of loss, when put in evidence by the plaintiff, are only admissible for the purpose of showing that the requirements of the policy have been complied with and as they are not admissible for any other purpose, (Traveler's Ins. Co. v. Nicklas, 88 Md. 474), there is no legal proof in this case that a sister of the insured, at any time died of consumption, and for this reason no doubt this phase of the case was not urged upon the Court either in the brief of appellant, or at the argument of the case in this Court.

In order to make declarations of the plaintiff contained in the proofs of death, evidence for the defendant company, it is necessary that such declarations be offered by the company, just as any other admissions of a party to the record are offered in evidence against him. When so offered it is for the Court to decide whether such declarations are admissible as evidence for the defendant or not.

In Stibbe's case, 46 Md. 312, the Court allowed the declarations of the plaintiff to go to the jury, not as conclusive evidence against her, but as evidence to be considered by the jury in connection with all the other evidence in the case.

Very frequently the form for making out the plaintiff's proof of death is filled up by a physician or some other third person, and merely signed by the plaintiff as such proof of death, without the plaintiff examining or thereby intending to subscribe to all the incidental statements therein contained; and for this reason, there is danger that such statements would be given undue weight by the jury, unless they were specially offered in evidence by the defendant, and opportunity given the plaintiff to explain the circumstances under which such statements were made.

As we have said the "substantial defense" is that the insured was not in sound health at the date of the delivery of the policy of insurance, and as the question of fact involved in such defense was properly submitted to the jury, we find no reversible error in the ruling of the trial Court, and its judgment will therefore be affirmed.

Judgment affirmed with costs to the appellee.