APPEAL from the First Division of the Appellate Court for the
First District; heard in that court on appeal from the Superior
Court of Cook County; the Hon. JAMES M. CORCORAN, Judge,
MR. CHIEF JUSTICE THOMPSON DELIVERED THE OPINION OF THE COURT:
Plaintiff, Annabell Marshall, as beneficiary, filed suit in the superior court of Cook County, on two policies of life insurance issued to her husband by the defendant company. The cause was tried before a jury and a verdict returned in her favor on both policies. Motions for a directed verdict, in arrest of judgment and for a new trial being overruled, judgment was entered in the sum of $8900, the amount of the two policies, plus interest. On appeal to the Appellate Court the judgment was affirmed and leave to appeal was granted by this court.
The defendant, appellant here, assigns the following errors: (1) That it was error to refuse to hold, as a matter of law, that the insured's failure to declare a certain treatment of December 30, 1943, was a material misrepresentation so as to avoid both policies. (2) That the application amendment, dated April 4, 1944, was erroneously construed as making the application speak as of its own date, whereas it properly spoke at the date of the amendment, so that the confirmed diagnosis of heart disease avoided the second policy. (3) That the instructions given for plaintiff-appellee were erroneous.
The principal facts are undisputed. On March 3, 1944, the insured applied for a $6000 policy of insurance from defendant, and on the following day was examined and questioned as to his health by the company doctor, the data being recorded on part "B" of the application. The questions and answers pertinent here are as follows: No. 11(b) "Have you ever had any ailment or disease of the Heart or Lungs?" Answer: "No." No. 12(g) "Have you consulted a physician for any ailment or disease not included in your above answers?" Answer: "Yes. Influenza three or four days, January, 1940 mild Good results. Dr.?" No. 13 "What clinics, hospitals, physicians, healers or other practitioners, if any, not named above, have you consulted or been treated by, within the past five years? If none, so state." Answer: "None."
At the time the insured was examined the company's doctor was required and did answer the following questions on the application: No. 17. "Is there any arteriosclerosis? (If present, state degree.)" A. "No." No. 20 "Did you, by thorough physical examination and inquiry, find any evidence of disease or impairment of the heart (before or after exercise)? If murmur is present, describe in detail, giving location, time and transmission, position of apex beat and degree of hypertrophy." A. "No."
Thereafter, on March 10, 1944, while the insured was awaiting the delivery of the first policy, he was stricken, and a Dr. Miller attended him and diagnosed his illness as strep throat. He was advised his heartbeat was not 100 per cent and it was suggested he have a cardiogram. He did and it was confirmed he had a serious heart disorder. On March 22, 1944, after confirmation of the heart condition, the first policy was delivered by the company's agent, who, at the time, attempted to sell the insured an additional policy of $5000, which, by compromise, was reduced to a $2000 policy. No application was filled out for this second policy. On April 4, 1944, the second policy was delivered together with a photostatic copy of the application made for the first policy and a document designated as "APPLICATION AMENDMENT." Pertinent parts of this document read as follows:
"To the Metropolitan Life Insurance Company:
"The undersigned hereby amends the application for Life insurance made to your Company on the date stated above; to make it the application for the above numbered policy on the Whole Life Paid Up at Age 85 plan with Disability Waiver and War-Aviation Prov. in the amount of $2,000 without affecting its use as the application for Policy No. 14977 598A.
"These amendments and declarations are to be considered as a part of the said application and subject to the agreements, covenants, and statements therein contained. The said application, together with these amendments, is to be considered as the basis of and as a part of the contract of insurance. The said application as amended, is correct and true, and I hereby ratify and confirm the statements therein made as of the date hereof.
"Signed and dated at Chicago this 4 day of April, 1944."
After the delivery of the two policies, the insured died February 4, 1946, of pulmonary embolism, and the company contends that material misrepresentations were made in answer to the questions as appear in the written application for insurance, together with amendments, which avoids both policies.
The record discloses that on December 30, 1943, prior to the application for insurance, the insured, Frank H. Marshall, after an evening of drinking liquor and eating with two other men, became ill with considerable disturbance to his stomach, which caused nausea and vomiting. He received medical aid from Dr. H. Hoyt Cox, who left a prescription at his home to be filled and remarked at the time, "You might have had a gall bladder attack." The insured recovered by the next day. He received no further treatment from the doctor at this time and experienced no further symptoms as above described.
On the trial the defendant company introduced, without objection, an office record card from the office of Dr. Cox, bearing the insured's name and showing an entry dated December 30, 1943, with the notation, "gall bladder attack." Dr. Cox testified that the card was his office record, but that he had no recollection of the case whatsoever; that the card did not refresh his recollection; that it was not made by him, but by his nurse or secretary; that he did not remember the call or what symptoms he observed, nor what examination he made, and that he had no recollection of the events whatsoever; that if the symptoms present were those of a gall-bladder attack, then it was possible that said symptoms might possibly result from a heart disorder; that if it was, in fact, a gall-bladder attack, it would not necessarily be damaging to the constitution and might come and go without serious consequences.
Two other doctors who had attended the insured in connection with the later-discovered heart disease testified that if Dr. Cox had found symptoms of a gall-bladder attack, those same symptoms might be connected with heart disease, but that if the cause of the symptoms was actually a gall-bladder attack, it might have no bearing on heart disease, and that one brief case of vomiting and nausea, whether ...