Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before SPARKS and FITZHENRY, Circuit Judges, and LINDLEY, District Judge.
Appellant seeks to reverse a judgment in favor of appellee as plaintiff in a suit upon an insurance policy upon the life of Leo P. Perron, now deceased. Two errors are assigned, viz., that appellant's motion for a directed verdict should have been allowed and that the court erred in its charge to the jury.
Appellant, by special pleas, asserted falsity of statements made by the insured in answer to questions 9, 10, and 13 of the application and in the final paragraph thereto, and insisted that they constituted fraudulent misrepresentations of material facts, barring appellee's action upon the policy.
Question No. 9 in the application, dated January 7, 1929, was, "Have you consulted a physician or practitioner for or suffered from any ailments or disease of: a. Brain or Nervous system? b. Heart, Blood Vessels or Lungs? c. Stomach, Intestines, Liver, Kidneys or Bladder? d. Enlarged glands, Tumors, Goitre, or Ulcers? e. Rheumatism or Gout?" with blanks for answer under the headings: "Yes or No, Name of disease, No. of attacks, Date, Duration, Severity, Results (if within 5 yrs., name and address of every physician consulted)." The deceased answered "No" opposite each ailment "a" to "e," inclusive, and nothing further except the word "mumps," opposite the first "No." He named no physicians or practitioners consulted.
Question 10 was "Have you consulted or been examined or treated by any physician or practitioner not named above within the last five years?" with blanks for answer under the headings: "Yes or No; Name and Address of Each; Date; Reason for Consultation, Examination or Treatment." The applicant answered "Yes"; -- "1923"; "Herniotomy, right, in Germany.Good result," and inserted nothing under the heading "Name and Address of Each."
Question 12 was "Have you ever been an inmate of any hospital or sanitarium? (If yes, state why and when.)" The applicant answered "No."
At the conclusion of the application, before the signature of the deceased, appeared the following statement: "I hereby certify that the above answers and statements are made by me, that they are correctly and fully recorded by the Medical Examiner, and that no material circumstance or information has been withheld or omitted concerning my past and present state of health and habits of life."
The application was, by its terms and by those of the policy, made a part of the latter, which issued on January 16, 1929. The policy was incontestable after it had been in force for a period of one year.
The insured died within the year, on December 18, 1929. The attending physician Dr. True, stated in the proofs of loss that death was due to scleroderma, Addison's disease, and terminal pneumonia; that the health of the insured became impaired in May, 1929; that the latter had been under observation at the Mayo Clinic in July and August and at Billings Memorial Hospital in April, 1929, and that an autopsy had been performed.
The undisputed evidence was that on July 26, 1927, the insured consulted Dr. Talbot; that he was then and for several months had been experiencing intermittent swelling of both hands and tenderness thereof upon pressure; that he then obtained a prescription of the physician and again consulted Dr. Talbot in October, 1927; that there was then no change. On January 9, 1928, the physician, again consulted, made a tentative diagnosis of vasomotor impairment (inclusive of any automatic nerve disorder), thought possibly to arise from food sensitization or protein basis and recommended that Mr. Perron go to a hospital.
The insured was admitted to St. Luke's Hospital in Chicago on January 22, 1928, assigned to a room and discharged as unimproved on January 24th, with a diagnosis of possible Burgher's disease. He complained of intermittent tenderness of the skin of the hands, intermittent swelling of the hands, lasting from a few days to a few weeks, numbness and swelling of the hands at night, and intermittent cramping sensation in the left foot. He had noticed for the first time that winter that cold weather affected his hands, producing numbness in the middle three fingers, absolute in the left hand but not so severe in the right. On brisk massage the sensation gradually disappeared. He reported that for three or four years past he had had sixteen to twenty attacks of a cramping sensation in the middle toe of the left foot, lasting each time from a few minutes to an hour, and several times in the preceding two or three years he had experienced intermittent attacks of dyspnoea in the morning. He mentioned as previous operations, herniotomy, four years before, and tonsillectomy, six years before. At that time there were physical examinations and tests of urine and blood and a resulting working diagnosis of Burgher's disease and possible Raynaud's disease. The blood had a high uric acid content.
The deceased was again readmitted to the hospital on September 16, 1928, and discharged September 21st, unimproved, with an undetermined diagnosis. The complaints were the same as in January, plus a painful swelling of both breasts. The physical findings were the same as before except that both breasts were definitely swollen and very sensitive to touch. There were examinations of stomach, urine, stool, and blood, and a metabolism test. The physician found a basal metabolism rate of 21.8 below normal. The working diagnosis at this time was parathyroid deficiency and possible Burgher's ...