Appeal from the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge.
Before WOOLLEY and DAVIS, Circuit Judges, and FAKE, District Judge.
This is an appeal from a judgment of the District Court for $5,000, with interest, against the Equitable Life Assurance Society on a policy of insurance issued on the life of Clyde A. Dunn. The company refused to pay the policy on the ground that the insured had knowingly and willfully made material, false, and untrue answers in his application for insurance and for the reinstatement of the policy.
On October 3, 1927, the insured, in an application for insurance, told the medical examiner for the company that he had never been treated for any disturbance of the heart or blood vessels; that he had never raised or spat blood; and that he had not during the past five years consulted or been treated by any physician except Dr. Thomas Sheppard of Pittsburgh in July, 1927, for "acute bronchitis, two weeks duration. Result. Good."
The policy provided that all statements by the insured, in the absence of fraud, should be treated as representations and not warranties.
On April 7, 1928, the policy lapsed for nonpayment of the premium. IT was reinstated on July 11, 1928, by the payment of the premium due and the delivery by the insured of a statement signed by him and dated July 7, 1928, that at that time he was in good health and had not consulted any physician since the issuance of the policy on october 7, 1927.
The defendant company says that all of these representations by the insured were material, false, and undisputed and so the court erred in refusing binding instructions.
Whether or not binding instructions should have been given is the real question before us.
Dr. Sheppard testified that he treated the insured for chronic valvular heart disease, mitral stenosis, from April 1, 1926, to October 3, 1927; that he saw him thirty-five times during that period, nine times at the insured's home and the other times at the doctor's office; and that he told him and also Mrs. Dunn many times that he had heart disease, advised him that he had mitral stenosis; that during this period the insured "got progressively worse"; that at times he had his patient in bed, "one, two or three days in bed, depending on how he felt."
The appellee attempted to rebut the truth of Dr. Sheppard's testimony. That is, she tried to show that the insured did not have chronic valvular heart disease as Dr. Sheppard said he reaily discovered at the first examination he made of Mr. Dunn. This she did, by the testimony of other physicians and by showing the kind of work that the insured regularly performed, thus seeking to have the inference drawn that, if he were in the condition in which Dr. Sheppard said he was, he could not have done the work which he admittedly did.
Dr. Frederick S. Kellogg was the physician who examined the insured for the company. He testified that he spends four hours a day in the office of the insurance company; that he made a thorough examination of the insured's heart, did not find any heart disease, and so reported to the company which issued a policy on his life.
Dr. J. W. Blair, a practicing physician in Latrobe, where the insured lived, except for a short time when he lived in Pittsburgh, testified that he knew Mr. Dunn all his life, saw him frequently, attended his son, who had scarlet fever, every day for a week or ten days, was not asked to prescribe for Mr. Dunn, at times saw him almost every day working, treated him professionally on July 12, 19, and 20, 1928, for grippe, influenza or affection of the bronchial tubes; that he examines many applicants for life insurance companies; that he examined the heart of Mr. Dunn at this time; that he did not have heart disease, and, if he had had it, he would have discovered it.
Mrs. Marie Dunn, insured's widow, testified that her husband was ill with a cold in April, 1926, and did not work for three or four days; that he was off again some time in 1927 a day or two, and that except during these times he worked regularly, doing such work as loading and unloading trucks, carrying cases of soda and root beer from place to place, at his place of business, putting up a barbecue stand, baking hams, and selling gasoline, soft drinks, candies, sandwiches, etc.; that he never complained of any illness and that from April, 1926, to the time that he went to St. Francis Hospital in Pittsburgh on August 9, 1928, where he died on the 15th of ...