Wohlfeil v. Bankers Life Co. , 296 Mich. 310 ( 1941 )

I believe the case should be reversed. Defendant proved by a preponderance of the evidence that plaintiff's decedent made a false representation in his written application for reinstatement of February 7, 1939, in stating that he was in good health and had not been ill within the last five years.

"The health of an applicant for life insurance is of vital importance to the insurer and questions to elicit information on the subject are proper to ask and should be truthfully answered." Mutual Life Insurance Co. v. Geleynse, 241 Mich. 659,663 (56 A.L.R. 702).

"Good health" as used in an insurance policy has frequently been defined by this court to mean that the applicant is free from any disease that would seriously affect the general soundness of the system, and that he has not been attended by a physician for a serious ailment. Blumenthal v. BerkshireLife-Insurance Co., 134 Mich. 216 (104 Am. St. Rep. 604);Ligrow v. Abraham Lincoln Life Insurance Co., 260 Mich. 444; Prudential Ins. Co. of America v. Ashe,266 Mich. 667; see, also, annotations in 40 A.L.R. 662 and 100 A.L.R. 362.

The proof of death, subscribed and sworn to by plaintiff, states that decedent had been ill during the five years; that the nature of the illness was ulcers of the stomach in 1937; the duration three days; and that Dr. Hill was the attending physician, whom plaintiff authorized to testify.

Defendant opened the proofs under the affirmative defense. Dr. Harold C. Hill, physician of deceased, testified that his records disclosed that he had treated the assured 10 times during July and August of 1938, and that he had treated him at other times during the period covered by February, March, and April of 1939, and for which he had no record. February, 1939, was the month in which decedent signed the application for reinstatement. Plaintiff's attorneys objected to Dr. Hill testifying as to the nature of assured's illness, as well as to the introduction of a report from the University Hospital at Ann Arbor sent to Dr. Hill after decedent had been at the hospital. The report was dated August 27, 1938. The trial court upheld plaintiff's objections and defendant's evidence was excluded. This ruling was correct. See Gilchrist v. MysticWorkers, 188 Mich. 466 (Ann. Cas. 1918C, 757).

Defendant then proceeded to examine six disinterested witnesses to elicit testimony as to Fred Wohlfeil's physical condition during the five-year period preceding February 7, 1939. Without exhaustively reviewing the testimony of each witness in detail, the substance of their testimony was that the deceased had been to the Ann Arbor hospital; that he staggered when he walked; that he appeared to be "fagged out;" he was not able to do a man's work; he said he was on a diet; he said he was doctoring with Dr. Hill and had been to the University Hospital in May and June and August of 1938; he told the head janitor that he had an ulcer of the stomach; said he could not eat certain foods and had to be on a light diet; his face was thinner and he seemed to be run down; he had been in failing health for two or three years; he complained about not feeling able to work. Joseph Metz, the head janitor, testified:

"He mentioned to me something about an ulcer at some time. That was in May or June of 1938. I can't remember the words he used when he referred to the ulcer. We were talking there one night. He was telling me he had been over to Ann Arbor and I says, 'Fred, what did they find out?' He says, 'Well,' he says, 'the report will come back to Hill, but,' he says, 'what I can get out of it,' he says, 'I have got an ulcer.' It was at the same time he referred to his having spinal trouble. He complained to me about his stomach. He said he couldn't eat certain foods. He had to be on a light diet. I can't remember when I had that conversation with him. It was something about this same time, May or June, and was within a year prior to his death."

Defendant went as far as it could in establishing the fact that the deceased had not been in "good health" at the time of making application for reinstatement, and that he had been ill within the previous five years. After establishing thisprima facie case of misrepresentation, it became incumbent upon plaintiff to prove that the illness was not of a serious nature. Bullock v. Mutual Life Ins. Co., 166 Mich. 240; Rickert v. Travelers Ins. Co. of Hartford, Conn., 282 Mich. 538.

To meet this burden, plaintiff and her daughter testified. Plaintiff explained that the statement in the proof of death, signed and sworn to by her, which indicates that deceased had suffered with ulcers of the stomach within the previous five years, had been filled in by the company's agent. She testified that she informed him that "my husband had told me that they thought he might have ulcers, so he went to Ann Arbor for a checkup, but when he came back they told him he didn't have it." She and her daughter also testified that deceased had not lost any time from work on account of ill health; that his staggering walk was the result of a previous injury to his heel of which the company had notice; and that he ate the same food as the rest of them. However, on cross-examination, plaintiff admitted that deceased was ill when he went to Ann Arbor; that his stomach was upset; that he complained that some things he ate troubled him. She further testified that she was away from home a part of this period attending to her duties at the State Sanitarium at Howell, Michigan, where she was employed as a practical nurse. Her daughter testified that deceased complained of stomach trouble more than usual in the summer of 1938, but she "wouldn't say it was serious." She also testified that the first time he went to Ann Arbor, he was in the hospital for three days.

A real illness, not merely an upset stomach, prompts a person to visit a physician professionally 10 times within 60 days and to make trips to the University Hospital at Ann Arbor at least three times and one time remaining there three days according to the testimony introduced by plaintiff. When decedent stated that he had not been ill for five years, he made a false representation.

Viewing the evidence in its most favorable light for plaintiff, as we must on this appeal, I feel that plaintiff failed to meet the burden of proof and that the evidence preponderates for defendant. Judgment should be reversed and a new trial granted.

SHARPE, C.J., and BOYLES, J., concurred with BUTZEL, J.