This case was originally assigned to Presiding Judge CARR. In the opinion prepared by him, and which now appears as the dissenting opinion, some of the basic and undisputed facts are set forth. We have not repeated such facts in this opinion. For this reason a better understanding of this opinion will result if these facts be secured by first reading the dissenting opinion.
The majority of the court being of the opinion that the appellant was entitled to have its motion for a new trial granted on the grounds that the verdict was contrary to the great weight of the evidence, our conclusions, and the reasons therefor follow.
In addition to the facts set out in the opinion of Judge CARR, the record further shows facts whose probative force is, to us, highly significant.
C.D. Brasell, Jr. was an employee of the insured, Mr. Fox, from 1946 until his *Page 33 death, and saw him practically every day during this time. Mr. Fox, during this time, sometimes complained to the witness about an upset stomach, and at various times during his employment this witness saw Mr. Fox taking alka-seltzer.
Dr. Newman testified that he was a specialist in obstetrics, had never treated Mr. Fox professionally, and his relationship with Mr. Fox was social only.
Apparently, as a friend, Dr. Newman arranged for Mr. Fox's admission to Ochsner Clinic, in New Orleans, Louisiana, when Mr. Fox felt he "might well have a checkup."
After Mr. Fox had spent four days in Ochsner Clinic the report of their examination was forwarded to Dr. Newman. This report is set out in full in Judge Carr's opinion.
This report specifically states that X-rays of insured's upper intestinal tract "revealed a small niche deformity along the lesser curvature side at the base of the duodenal cap at the level of its juncture with the pylorus. This represents evidence of ulceration. There is essentially no deformity of the duodenal cap and no tenderness or pylorospasm."
Thus taken as a whole the report does specifically state that there was a small niche deformity of the base of the duodenal cap, though essentially the cap itself was not deformed.
In this connection it might be well to interpolate that Dr. Raider, a specialist in radiology, testified that the degree of deformity of the duodenum resulting from an ulcer depends first upon the depth of penetration of the ulcer, its duration, and the existence of previous ulcers in the cap.
The defense introduced the records pertaining to insured of Ochsner Clinic made during the period of insured's examination. The general history given to the clinic by the insured was as follows:
"This 33 year old white male states that about 10 years ago he developed burning and gnawing pains in the epigastrium which generally occurred about ten or fifteen minutes after meals. These pains were accompanied by distention and a slight relief was obtained by belching, but more relief could be obtained by taking alka seltzer, and slight relief could also be gained by taking soda. There was much nausea and some vomiting. He gives no history of vomiting food taken prior to the previous meal. He has never noticed any particularly offensive foods, as far as his complaints are concerned, but he says that all types of foods seem to cause it at some times and then on other occasions nothing seems to precipitate the attacks. He states that he can eat spicy and fatty foods with as much immunity as other types of food. However, he does report that the attacks are almost certain to follow ingestion of alcoholic beverages."
Dr. Edgar H. Little, of the staff of Ochsner Clinic, a specialist in radiology and with many years experience, testified that he had no independent recollection of examining the insured, as he examines fluoroscopically thousands of patients yearly. These examinations are made in a darkened room and he does not see the patient's face. This witness' recollection also was not aided by examination of the record. However he testified that the written report of his examination was made on the day of the examination, represent his work, and was correctly made.
Under such conditions the record was the equivalent of a positive present statement of the witness affirming the truth of the contents of the record. Acklen's Ex'r v. Hickman, 63 Ala. 494; Roll v. Dockery, 219 Ala. 374,122 So. 630, 65 A.L.R. 1473.
Dr. Little stated that the record of his fluoroscopic examination of Mr. Fox 16 October 1944 showed that on that day he found there was a small niche deformity along the lesser curvature side at the base of the duodenal cap, and that this represented *Page 34 roentgenological evidence of ulceration; that there was no essential deformity of the cap, no tenderness, and no pylorospasm. His examination indicated that Mr. Fox had a duodenal ulcer at that time, and that he would state that Mr. Fox did have a duodenal ulcer on that date.
Dr. Little had also examined the plates of the X-ray examination of Mr. Fox made in the clinic two days prior to the fluoroscopic examination. These plates revealed the same conditions found by Dr. Little in his fluoroscopic examination.
Dr. Raider, the specialist in radiology, testified as an expert witness for the defense. Dr. Raider stated that the best method of determining the existence of an ulcer is an exploratory operation and examination of the tissue; the second best method is examination by X-ray. In an X-ray examination the first and pathognomonic and undisputed demonstration of an ulcer is the finding of a crater or niche, and the existence of a crater or niche can indicate nothing other than an ulcer.
Dr. Paul M. Goldfarb, a specialist in internal medicine, testified as a witness for the defense.
Dr. Goldfarb testified that he had never known Mr. Fox until he was called to see him on 28 November 1948. He found Mr. Fox vomiting blood and also passing blood from the rectum. He called an ambulance and Mr. Fox was taken to the Mobile Infirmary.
Dr. Goldfarb, at the hospital, wrote down the history given him either by Mr. Fox or Mrs. Fox. Among other things this history discloses: "Duodenal ulcer discovered 5 years ago but has not taken care of it."
Mr. Fox bled considerably while in the hospital and died on 30 November 1948.
The final diagnosis made by Dr. Goldfarb on 30 November 1948 was: 1. Gastrointestinal hemorrhage from duodenal ulcer. 2. Acute myocardial insufficiency.
Dr. Goldfarb further testified on cross examination that he could not be one hundred per cent certain that Mr. Fox had a duodenal ulcer without actually seeing the tissue, but that his clinical impression was that he had an ulcer, and he believed he did.
Dr. Newman, whose testimony has in part been mentioned above, and also in Judge CARR's opinion, testified as a witness for the defendant.
Dr. Newman testified that it had been his teaching that deformity of the duodenal cap was one of the cardinal findings of the existence of an ulcer, and that absence of deformity would be evidence of a healthy condition, and he felt that that is the way radiologists would look at it.
Every one he has seen with a duodenal ulcer has had tenderness at the spot, and he would not suspect an ulcer without pain. Further he would think that the absence of pyloric spasms would be evidence that there was no ulcer.
In answer to the question: "Q. Now, then, if a man were found to have no deformity of the duodenal cap, no tenderness, no pylorospasms, would that be persuasive to you that he did not in fact have a duodenal ulcer?" Dr. Newman replied as follows: "It would be reported especially here — and we have some good radiologists — I get reports from them all along — not only do they do a lot of X-raying, and are equipped to do that, they do a lot of palpation under direct fluoroscopic visualization, and it would be reported negative. I have been here perhaps five years, and believe we have excellent radiologists here."
Dr. Newman further testified that the symptoms of gastritis and duodenal ulcers are practically the same, and cause a lot of confusion among diagnosticians. Also, that "My experience has been that radiologists hedge a lot on their interpretations, and rather often give you reports that are non-committal in making no firm diagnosis." If the anatomy is abnormal a number of interpretations are permitted, depending on who looks at the film. The interpretation of X-ray films is given to error. However, Dr. Newman thought that Ochsner Clinic would not tolerate any but the best radiologists. *Page 35
Dr. W.R. Meeker, a physician and surgeon, testified as an expert witness for the plaintiff.
Dr. Meeker testified that the usual symptoms of a duodenal ulcer are deformity of the duodenal cap, local tenderness, and pylorospasm. However, on cross examination Dr. Meeker testified that: "Many of them have no effects at all, and are discovered at autopsy, and many patients had never given any history of any trouble whatever."
On direct examination the record shows the following questions propounded to, and answers by Dr. Meeker:
"Q. And if those things did not exist, if there was no deformity of the duodenum, no tenderness there, and no evidence of pylorospasm, you say that would, in your opinion, indicate that there was no disease there? A. It would be a negative examination, yes, sir.
"Q. And that there was no duodenal ulcer, is that right? A. Yes, sir."
Dr. Meeker further testified the symptoms of gastritis and duodenal ulcer may often be confused.
During the examination of most of the expert witnesses the plaintiff's counsel addressed to them questions seeking testimony as to the absolute validity of the representations shown by X-ray pictures. These questions were substantially to this effect:
"Q. Does an X-ray picture always truthfully show the condition of that part of the human anatomy which it purports to be a picture of?", and
"Q. May the condition of an organ or a part of the human anatomy always be determined by reading or interpretation of an X-ray picture of that organ or part of the human body."
Dr. Newman's answers were that it had been his experience that radiologists hedge a lot on their interpretations, and rather often give reports that are noncommittal in making a firm diagnosis. He was sure it was true that shadows on an X-ray film may often deceive, but "I don't profess any radiological ability."
Dr. Warren answered the questions with a simple no, with no elaboration, though he stated that X-ray films may oft times deceive.
Dr. Goldfarb testified that in the hands of a competent man X-ray pictures of the stomach and duodenum were "probable 98%" accurate.
Dr. Raider stated that X-ray pictures were always a true record, though extraneous factors could cause defects that simulate pathology, though such defects do not deceive the trained observer.
Dr. Meeker answered the questions in the affirmative, and stated that of all X-ray work gastro-intestinal X-rays are the most difficult to make so as to truthfully reflect the condition they purport to depict.
As stated in Judge CARR's opinion, it is the settled rule that misrepresentations made in an application for insurance will not defeat or void a policy unless it appears that: (1) The representations were false; (2) they were made either with actual intent to deceive, or unless the matter misrepresented increased the risk of loss; and (3) the insurer relied upon them to his prejudice.
The evidence is uncontradicted that the insured was a patient in Ochsner Clinic for four days in October 1944. The answers to questions 5, 12, and 13 on the application were false.
It is further our conclusion that the great weight of the evidence tends to establish that Mr. Fox was suffering from duodenal ulcer at the time of his stay in the clinic.
Such was the diagnosis made at the clinic after fluoroscopic and X-ray examinations, which revealed a niche deformity along the lesser curvature side at the base of the duodenal cap. According to Dr. Raider, *Page 36 the finding of a niche can indicate nothing but an ulcer. We do not find this statement contradicted in any of the evidence, unless it be argued that the testimony of Dr. Meeker that if there was no deformity of the duodenum, no pylorospasm, and no tenderness, it would be his opinion that no ulcer existed. However Dr. Meeker also testified that hundreds of patients show no symptoms of duodenal ulcer whatsoever, and the condition is discovered only at an autopsy.
The real weakness in the probative value of Dr. Meeker's above statement relative to the existence or absence of an ulcer is however that his reply was to a question which failed to hypothesize the material fact on which it is clearly inferable the diagnosis of the Ochsner Clinic was based, namely that their X-ray and fluoroscopic examinations revealed a niche deformity along the lesser curvature side at the base of the duodenum.
It is further our conclusion that the testimony of Dr. Little, and Dr. Goldfarb, the only two physicians who based their opinions on actual physical examinations of the insured, is not seriously contradicted by the statements of some of the experts to the effect that X-ray films do not always truthfully show the condition of the anatomy they picture, or may be misread, and that the symptoms of duodenal ulcers and gastritis are often confusing.
Other than Dr. Little, none of the medical experts had actually seen the X-ray films, or the fluoroscopic picture of the insured made in the Ochsner Clinic. To deny the validity of these pictures or films we must assume they were improperly made or improperly read. Such conclusion would rest on surmise and speculation, for certainly there is no evidence tending to show such defects, other than the general statement that X-ray films are not always accurate, or are not always correctly read.
In fact, Dr. Meeker, the plaintiff's expert witness, testified that in a case where he was not called upon to make a diagnosis, and a diagnosis had been made by Ochsner Clinic, he would be inclined to accept it, and the same would be true as to a diagnosis made by Dr. Goldfarb.
Likewise, the general statements of some of the medical experts to the effect that the symptoms of ulcer and gastritis are similar and sometimes confused, is not sufficient in probative weight to satisfactorily overcome the firm diagnoses of the two doctors who actually examined the insured and as a result of such examinations diagnosed his ailment as a duodenal ulcer.
Particularly is this true in light of the X-ray and fluoroscopic showings of a niche or crater, which according to the undisputed evidence of Dr. Raider could mean only one thing, that the patient has an ulcer.
It is our conclusion that the great weight of the evidence tends to establish that Mr. Fox did have a duodenal ulcer at the time he was a patient in Ochsner Clinic, and at the time of his death.
The sole remaining question is therefore did the matter misrepresented increase the risk of loss.
In this connection all of the medical experts questioned upon the subject, with the exception of Dr. Meeker, testified that a duodenal ulcer did increase the risk of death.
Dr. Farnham, assistant medical director for the defendant company, who had approved the application of Mr. Fox for insurance, further testified that in approving the application he had relied a great deal on the answers therein showing no illness; that a duodenal ulcer would definitely affect the risk of loss, and that life insurance companies generally, acting reasonably in accordance with their usual practice and custom would not issue a policy if they had knowledge that the applicant had had an ulcer approximately two years and nine months previous to the application, though some companies might consider issuing a policy on a rated basis providing further X-ray examinations and studies were made and the applicant had been free of symptoms for a long period of time. *Page 37
Dr. Goldfarb testified that in his opinion Mr. Fox died sooner, by reason of having a duodenal ulcer, than he would have died had he not been so afflicted, and he would say that he died prematurely.
The only evidence tending in anywise to conflict with uniform views of the medical witnesses testifying on this question of increased risk by reason of duodenal ulcer is the following testimony of Dr. Meeker:
"Q. Now, Doctor, I believe you have testified to some of the consequences of duodenal ulcer, and one of the consequences which you mentioned was perforations. What is meant by a perforation when you are referring to a duodenal ulcer? A. It means that the ulcer has progressed in burrowing through the walls to the extent that the contents escape into the peritoneal cavity.
"Q. Since that is a possible consequence of a duodenal ulcer, would you say that the risk of death of a person having a duodenal ulcer was greater or less than one who did not have a duodenal ulcer?
"Mr. Johnston: Objected to as incompetent, immaterial and irrelevant, and because it invades the province of the jury, on the very matter to be decided by the jury.
"Court: Overrule.
"A. Yes, there is certain risk in all diseases, which must be taken into consideration, comparing them to patients who don't have those diseases.
"Q. And that is true of duodenal ulcer? A. Yes, sir.
"Q. And so a person who is suffering from a duodenal ulcer is a greater risk than one who doesn't have one? That is true, isn't it? A. It is true in a small proportion of cases.
"Q. But it is true though? A. Yes, sir."
Analysis of Dr. Meeker's above testimony leaves doubt as to whether, in its probative tendencies it does actually conflict with the testimony of the other medical experts as to whether a duodenal ulcer increases the risk of death. This aside, it is our conclusion it is insufficient in its probative value to overcome the great weight of the evidence of the other medical experts to the effect that duodenal ulcer does increase the risk of death.
Furthermore it in nowise contradicts Dr. Farnham's testimony to the effect that life insurance companies generally, acting reasonably in accordance with their usual practice and custom would not have issued a policy had the fact been revealed in the application that the insured had an ulcer two years and nine months previously.
In Metropolitan Life Ins. Co. v. Dixon, 226 Ala. 603,148 So. 121, 122, the late Chief Justice Gardner wrote:
"A material risk is any previous affection which might reasonably have been considered a menace to the prolongation of the life of the insured, and that, had it been revealed, the application would have been rejected."
Along this same line, in Sovereign Camp, W. O. W. v. Moore, 237 Ala. 156, 186 So. 123, 125, Judge Bouldin defined increased risk of loss as follows:
"The risk of loss is increased if the matter misrepresented be so material to the question of life expectancy that an insurer may have reasonably declined to accept the risk if the truth had been revealed."
The uncontradicted evidence shows that the insured was a patient in Ochsner Clinic for four days.
The great weight of the evidence tends to show that he was at this time suffering from a duodenal ulcer. Two years and nine months thereafter he applied for the insurance policy in question, and stated in such application that he had never had any ailment or disease of the stomach or intestines, and had visited no clinics or physicians within the previous five years. Some 14 *Page 38 months after the policy was issued the insured died. His attending physician listed the cause of death as gastro-intestinal hemorrhage from duodenal ulcer, and acute myocardial insufficiency. In the history given this attending physician by either the insured or his wife was the statement "duodenal ulcer discovered 5 years ago Lut has taken no care of it."
Not to conclude that the great weight of the evidence tends to show that this insured's affliction did increase the risk of loss in this case would be to deny all reasonable inferences to be drawn from such facts.
It is our conclusion therefore that the verdict and judgment rendered and entered in the court below is against the great weight of the evidence and this cause should be reversed and remanded.
Reversed and remanded.
CARR, P.J., dissented.