This is an appeal from a directed verdict in favor of defendant company. The trial court determined, as a question of law, that the failure of the insured to inform the insurer that he visited a physician on July 11, 1934, when he was treated for indigestion, was a fraud upon the company.
LaDoyte Clemans applied for $3,000 of life insurance on February 1, 1936, in favor of his partner and *Page 539 was physically examined by Dr. Stiefel of Battle Creek on the same day. His application contained, among others, the following questions and answers:
"Have you within the past 10 years received medical advice or attention? Yes. Surgical advice or attention? Yes, anal fissure cauterized. * * *
"What physician did you consult? Dr. Winslow.
"When? Three years ago, 1932.
"For what? Anal fissure.
"Duration of illness? 2-3 days.
"Present health? Good.
"Name and residence of usual medical attendant, or family physician? Dr. Winslow. * * *
"Have you ever modified or restricted your diet? No."
Clemans, then about 38 years old, dropped dead on the street July 22, 1936, and the death certificate, filed by the coroner, gave the principal cause of his death as "coronary thrombosis (acute dilation), died suddenly on the street." No laboratory tests were made and no autopsy was performed.
Dr. Stiefel's examination of Clemans did not disclose any heart trouble; his weight was normal and his blood pressure was 120-85. The doctor considered "applicant an excellent risk." Dr. Winslow was called as a witness by defendant and testified that Clemans first called at his office in 1932 complaining of indigestion after a heavy meal and that he was treated for biliary stasis (inhibited flow of bile). He was given a non-hydrochloric acid solution, nux vomica, some anti-dyspeptic liver tablets and a bland diet was outlined. According to the doctor's records, he next saw the deceased on July 11, 1934, and the witness read the following from his memorandum made after that visit:
"The patient states 'Last night 8 to 10 p. m. had acute distress about the heart. Think it was indigestion. *Page 540 It was a first attack, felt like the heart was contracting hard. Put finger in throat, vomited, and felt much better. Felt under par today. Ate but little."
An examination was made by the doctor disclosing temperature 99.4, pulse 96, heart normal, blood pressure 119 over 90." The doctor again prescribed nux vomica, hydrochloric acid and a 'tonic tablet. On this same day the doctor treated his patient for a small anal fissure, removed some external piles and rendered post-operative treatment several times afterwards. The witness was questioned regarding his examination of Clemans' heart condition on this occasion and said that it was normal.
Dr. Brotherhood, who had practiced medicine for about the same time as Dr. Winslow, some 20 years, testified that the treatment administered in 1932 and in 1934 was proper in view of the symptoms and examination, and that the natural result of indigestion is pains in the stomach and about the heart. This witness was not permitted to answer certain hypothetical questions purported to have been based upon the previous testimony shown in the record and, although error is assigned upon the exclusion of the answers, the matter is not raised in appellant's statements of questions involved, nor argued except by indirection in the briefs.
The principal question before us is whether plaintiff is precluded from recovering on the insurance policy by reason of the concealment of a material fact by the insured amounting to false representation on his part.
It would seem reasonable to suppose that although Clemans thought he had a heart attack in 1934, that he was entitled to rely upon the diagnosis of a reputable physician to whom he made a complete disclosure *Page 541 of his symptoms and that after the doctor said that his heart was normal, a true statement was made to the insurer by Clemans when he gave both the date of 1932 as the first visit, and three years ago as the second visit, although it was more correctly, two years ago. The insurance company had every opportunity to investigate its risk and there was no concealment by Clemans of a material fact known to him.
The dates given by Clemans were not warranties under the statutes:
"All statements made by the insured, shall, in the absence of fraud, be deemed representations and not warranties," 3 Comp. Laws 1929, § 12427, and
"The falsity of any statement in the application for any policy covered by this chapter shall not bar the right to recovery thereunder unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer." 3 Comp. Laws 1929, § 12444.
Taking plaintiff's testimony as true and viewing it in its most favorable light as we must do on his appeal from a directed verdict, we must hold in consideration of that evidence and the reasonable inferences and deductions that may be drawn therefrom, that plaintiff was entitled, on the question of fact thus raised, to a verdict at the hands of a jury. Sheathelm v. Consumers Power Co., 280 Mich. 106.
Defendant relies, among other authorities, onBellestri-Fontana v. New York Life Ins. Co., 234 Mich. 424;Mutual Life Ins. Co. of New York v. Geleynse, 241 Mich. 659 (56 A.L.R. 702), Metropolitan Life Ins. Co. v. Carter,252 Mich. 432, and New York Life Ins. Co. v. Bahadurian, 252 Mich. 491. *Page 542
These cases are distinguishable as follows: In theBellestri Case, the insured consulted a physician a few months before the date of his application, had an X-ray taken of his stomach, and yet he represented that "he had never suffered from any ailment or disease of the stomach or intestines and had not, within five years, consulted with or been treated by a physician."
The Geleynse Case permitted the cancellation of a policy because of concealment by the assured of some 15 treatments for stomach trouble within two months before the date of the application, and stating that his last medical attention was some 10 years previously.
The Carter Case was another cancellation action based upon the concealment of treatment for tuberculosis during a prison incarceration, the insured having been paroled from custody about five weeks before he applied for his policy of insurance. He had been in prison for four years and spent some weeks in a tuberculosis hospital, and yet he stated that he had not been treated by a physician, etc., within five years.
The facts are not stated in the Bahadurian opinion, but it, like the Carter and Geleynse Cases, properly followed the rule of the Bellestri Case by affirming cancellation where the applicant falsely denied having consulted a physician within five years.
The distinction between these cases and the one before us is that Clemans did not conceal a material fact. He stated exactly what had occurred in his physical history and was under no legal obligation to substitute his idea of his indigestion symptoms for the considered diagnosis of his physician, Dr. Winslow.
The error made in date, viz., three years instead of two, did not and could not, under the circumstances *Page 543 of the case, assume the dignity of a warranty.
Under our holdings in Plumb v. Penn Mutual Life Ins. Co.,108 Mich. 94, Blumenthal v. Berkshire Life Ins. Co., 134 Mich. 216 (104 Am. St. Rep. 604), and others cited in ContinentalCasualty Co. v. Winsor, 258 Mich. 118, 124, it is not the duty of an insured in applying for insurance to advise the company in answer to a question concerning his consultation with physicians of every time he had consulted a physician for a temporary indisposition, but only of the times of consultations relative to a serious ailment.
The court was in error in directing a verdict for the defendant. The judgment entered by the circuit court is vacated and the cause is remanded for a new trial, with costs to appellant.
SHARPE and CHANDLER, JJ., concurred with BUSHNELL, J.