
    FRAUD IN PROCURING LIFE INSURANCE.
    [Circuit Court of Hamilton County.]
    Michigan Mutual Life Insurance Company v. Abner L. Whittaker, Administrator.
    Decided, July 15, 1905.
    
      Life Insurance — Applicant's Failure to Disclose Condition of Health — • Or \to Pass Previous Examination — Weight of Testimonyi — Of Physicians Who Discovered His Condition — As Compared With That of the Examining Physician Who Did Not Discover It — And of Acquaintances Who Thought Him in Fair Health.
    
    In a suit upon a policy of life insurance, the defense of fraud in the procuring of the insurance must he regarded as sustained, where the insured' who died within a few months after the policy was issued from the effects of enlargement of his spleen to twenty-six times its normal size, failed to disclose his condition to the examining physician, although three physicians had told him of the had condition of his health, one of whom had1 refused to pass him for 'life insurance, and one had told him he had heart disease, and one had discovered the enlargement; and this is true notwithstanding the examining physician failed to discover his condition and numerous acquaintances testified to his apparent good health.
    Swing, J.; Jelke, J., and GtIeeen, J., concur.
   This was 'an .action on two policies of insurance issued by the defendant on the life of John O. Dexter. One policy was for the sum of five thousand dollars issued July 1, 1901, on an application signed June 20th, 1901, and was for a five year term with privilege of renewal Without medical examination for another five year term.

The other policy was a ten year “policy, with certain optional benefits as to change of time, and was for two thousand dollars, issued 'September 10, 1901, on an application signed the same day.

The answer of the defendant admitting the issuing of the policies, ‘and for a defense alleged that the policies were procured by the fraud of Dexter in misrepresenting tO' the defendant the state of his health' and that lie had given untrue answers as to his having maide 'application for insurance and been refused.

The ease was tried before a jury and a verdict rendered for the full amount claimed in both policies. Error is prosecuted to this court and the main ground urged is that the verdict and judgment is not sustained by sufficient evidence.

At the time .the policies were issued, Dexter was living in Columbia, Tennessee. He was a lawyer by profession; nnmiarried, and living with his mother. He left Columbia the latter part óf October, 1901, and came to Cincinnati, and got employment with the .Cincinnati Cordage & Paper Company. He died at Cincinnati, April 10, 1902. Dexter died very suddenly, and a post-mortem examination by Dr. Haerr disclosed that Dexter’s spleen was of abnormal size. It was about thirteen (13) inches long, and weighed about thirteen (13) pounds; normally, it should weigh about seven (7) ounces, and be from six to six and one-half inches long. It was therefore about twenty-six times as large as it should have been. Upon observing the spleen, no further examination of the body was made and death was ascribed to- this cause.

Soma time prior to December 27th, 1901, Dexter, who was a member of the fraternal order -of B. P. O. E., made application to be admitted to the chapter at Cincinnati. Before admission, he w-as compelled to submit to an examination by the physician of the- order. This physician 'happened to be the same Dr. ITaerr who made the post-mortem examination. Dr. ITaerr testified that he found ini this examination a dullness on one side of his chest; he thought first it was his lung. It seemed to be solid, and was somewhat distended, but which he attributed to an enlargement of the spleen. Dr. Haem- then said to Dexter that be could not pass him ás a well man. Dexter said he would not become a charge upon the lodge. The doctor reported to the lodge the result of his examination and statement of Dexter as to not becoming a charge upon the lodge, and under these- circumstances he was admitted to the Cincinnati chapter or lodge on December 27th, 1901, which he regularly visited up to the time of his death.

Some seven members of -this lodge wh-o became acquainted with Dexter after he came to Cincinnati, and who met him mostly at the meetings of the lodge, gave evidence as to (his appeáranee. Michael Meehan, tyler of this Elks lodge, said he saw him at lodge meetings; was a small man in stature; seemed to be -a delicate looking man; never noticed anything wrong with 'him, never heard him cough or spit.

William, B-odemer testified; was presiding officer -of Elks; did not notice anything out of the way with him; never heard him -cough.

Burton H. Foster testified that he worked in the cordage company with Dexter, and knew him-; said he heard -of no illness of Dexter, and ne-ver heard him eongh.

Several other persons who met him for the first time after he oaimie to Cincinnati, testified in a similar manner. All -of this evidence was clearly of no value-; if it proved anything it was that there was nothing -the matter with Dexter during the time that they knew him, whereas the truth of the matter is, without the slightest question, that Dexter died from the effects of diseased condition nf his spleen and that his spleen was badly diseased at the time that Dr. TIaierr examined him in December, 1901, and evidently had been for a long time prior to that date, as Dr. Haerr found it pressing hard against his lungs, and yet during this ticmie these witnesses testified that they did not see anything out of the way with him. That there was something the matter with him, .and of such' a serious nature as to cause his death in a short time, is shown. The only effect of this evidence is to show .at the most, 'that while Dexter was hastening to his death with this deadly disease, his condition was not suggested to his friends in his personal appearance. This evidence could have no value to the plaintiff, but might be against her in this, that it showed that only those who mlade careful examination of Dexter were able to discover that he was suffering with a deadly disease.

There was a large amount of evidence introduced on the trial of the ease in the form of depositions taken in Tennessee, where Dexter had resided for a number of years previous to his coming to Cincinnati, and which included some four physicians, besides quite a number of persons who h'ad known Dexter intimately while he lived in Columbia, Tennessee. The testimony of three physicians, Doctors Briggs, Porter and Pillow, was taken by the defense, and. the testimony of Dr. Williamson, the examining physician who mlade the examination upon which the policies of insurance were issued, was taken by the plaintiff.

The testimony of Dr. Briggs, of Nashville, Tennessee, was to the effect that he made :a physical examination of Dexter in the spring or early summer of 1901, land found organic disease of the heart; thought him in a very bad condition, and liable to die in a short time. Did not tell Dexter .the result of his examination, but he did tell his mother. “I told him he had heart disease, and he seemed to be pretty well aware of it. Said he was going to Cincinnati; said be had been examined by Dr. Pillow, and came to me for confirmation. He said that Pillow had told him the same thing. ’ ’

. Dr. Porter, age 35, lived at Columbia, Tennessee; bad known Dexter for fifteen year-s; belonged to the same lodge of Knights of Pythias; was examining physician for that order in 1901 and up to the present time; testified that Dexter made application to 'him as examining physician of that order. Examined him, in a measure; saw <him three times; the first time found his pulse over 90; his heart with what is called a “stormy” 'heart, beating unduly, laboring under difficulties; heart beats rapid between 90 and 100; temperature 100%, the first time, about the first of May. Told him to come hack again. He came back in three or four days. Had the same examination, found an unduly enlarged abdomen. Did not investigate it further, but that was sufficient 'to stop the investigation.

He had fever on both occasions. About a week afterward, made another examination, but only to take his pulse and temperature. Pound two and a half degrees of fever; and pulse accelerated and irritable. I made no further examination, as I knew he would not be accepted. I told him his temperature was elevated, 'and his heart unduly rapid. I told him it was not worth while for him ti» come back again. His shoulders were somewhat bent forward; flat chest; and general appearance was that of 'a man failing in health. A part of the examination was reduced to writing, and I told him it was hardly worth- While to return, that I could not pass him. I never sent his application in.

There -is -absolutely no evidence in this case that tends to throw ;any discredit upon the truthfulness -of these witnesses’ testimony, unless it be found in the evidence of the plaintiff, or in the fact that Dr. Williamson, who made an examination some months .afterwards, found none of these conditions to exist, ■hut when taken ini connection with the subsequent death of Diexfer in less than ia year .from the time that Dr. Porter made the 'examination, and the further fact that within less than six months after that tirnle Dr. Haerr, of Cincinnati, found the enlarged abdomen, -which was caused1 by the enlarged spleen from which cause Dexter -died, w.e are- forced to the conclusion thlat this evidence -of Dr. Porter wias true, and that there is no evidence to he found in the record that has -any weight which tends to disprove that the result of that examination was that Dexter was not in good health; on the contrary was suffering from an incurable disease, and that Dexter was so informed by Dr. Porter. Therefore, Dexter knew, or at least had evidence that would lead him to believe that be was not in good health. The fact is clearly shown that the result of this examination by Dr. Porter, and the faicts communicated to him by Dr. Porter and Dr. Briggs, and the 'examination of Dr. Pillow, were not communicated to the insurance company at the time he was called upon to make disclosures to it.

Dr. Pillow, age 49, practicing physician twenty-seven years, lived at Columbia all his life; graduated from the University of Pennsylvania; examining physician for the New York Life; Mutual Life; Mutual Benefit of New Jersey; Northwestern Equitable, and others, was the family physician of Dexter''and his mother; testified that he knew Dexter for many years; saw him frequently in 1901, during which time he made an examination of John before he went to the springs. ITe testified that Dexter had a harrassing cough; that he made a thorough examination •of him, and' detected an organic lesion of ‘the heart. Dexter told mie he wanted my honest opinion. I told him beyond question he had organic heart lesion, and said -it was sometimes caused by a crowded stomach. That he had been looking bad, and that there was anxiety about his health for some time before I examined him-. His another requested me to examine him. His general appearance was of one in had health; not 'as vigorous as he usually had been.

We see nothing in this -evidence to indicate -that what Dr. Pillow testified to was not the truth.

There is a great mlass of evidence in this case, by friends and associates of Dexter who lived in Columbia, among them being Mr. Hatcher,-a lawyer, in whlose office Dexter worked for several years. It is not necessary to go over in detail and point out the exact testimony of Dr. Hatcher. Everything indicated that it bears upon its face the marks of hlo-nesty and, truthfulness, and we fail to discern from the record any reason why Mr. Hatcher should have testified to anything other than the truth. He had been a friend of Dexter, and evidently Dexter had been a friend of his. He regarded him very highly; aided him in his life; gave him employment (and had advanced his interest, and we see no reason why he should give -evidence in this case for any purpose other than to tell the (truth.

The sum and substance of the faict of the evidence is that Dexter, in the spring of 1901, was failing; that he looked bad and had all the -appearaniee -of one in bad health; that his appearance, to Mr. Hatcher, was just what one wou-ld expect it to be from the examination made by Drs. Briggs, Porter and Pillow.

It probably is unnecessary to take up the evidence of other residents and friends of Dexter who lived in Columbia, Tennessee, and review them carefully. It is -sufficient to- say that they all correspond, and1 all were of the sarnie effect as that of Mr. Hatcher. From this evidence we take it that these witnesses are among the leading citizens -of" Columbia, Tennessee, -and there is nothing in the record to show that they were not of men of the highest standing and integrity and truthfulness. Furthermore,’ there is nothing in the evidence to show that they had any interest in 'the litigation or that there was any reason why they should not tell the truth-. It is true that these witnesses were not before this court, and we had no opportunity of forming iany judgment of them from personal observation. Bub neither were 'they -before the jury, and we have the same right to draw the conclusion from their evidence that the jury had-. From a careful reading of the -evidence, we come unhesitatingly to the conclusion that at the time these policies were written, and before, John Dexter was not in good health -and that he was well -aware of it. As against this evidence, we have the testimony of his mother, who was the real party in interest in this case. "We do- not desire to oast (any reflections upon her evidence other than say that we think from her own evidence it is shown that at this period she was very much concerned about John’s health. As against this evidence there stands out prominently the testimony of Dr.- Williamson, the examining physh cían who made the examination upon which the policies were issued. His testimony is to- the effect that he found nothing wrong with Dexter; that he found his pulse, temperature, heart, •and stomach in a normal condition, or nearly so, at least his condition was such that he passed him as a fit subject for insurance.

Robert Ramsey, for plaintiff in error.

C. W. Baker, contra.

In considering Dr. Williamson’s testimony, it is proper to consider that he hardly stands in the light of a disinterested witness, as the correctness of his examination is certainly brought in question by the undisputed fact that Dr. Haerr, within less than three months after that examination, discovered enlarged abdomen and a pressure against the -lungs which was caused by the disease that Dexter, within a week, died of.

Dr. Porter testified that ihe had found that condition to exist before Dr. Williamson made his examination. We are therefore compelled, from the evidence, to find that Dexter was not a sound man .at -the time these policies were written, that he had every reason to know it, and that he did know it, and that the jury when they found differently rendered .a verdict which is not sustained by the evidence. The judgment therefore must be reversed, and remanded for further proceedings.  