I am unable to concur in the opinion of the court:
The appellant sued the appellee under the disability clause in a life insurance policy which provides: "And further, if the insured becomes wholly and permanently disabled before age 60, The Society will waive subsequent premiums and pay to the insured a disability annuity of Two hundred and fifty dollars a month subject to the terms and conditions contained on the third page hereof," of which conditions the following bear on the question of liability in this case: *Page 412
"Disability benefit before age 60 shall be effective upon receipt of due proof before default in the payment of premiums that the insured became totally disabled by bodily injury or disease after this policy became effective and before its anniversary upon which the Insured's age at nearest birthday is 60 years."
"Disability shall be deemed to be total when it is of such extent that the Insured is prevented thereby from engaging in any occupation or performing any work for compensation of financial value, and such Total Disability shall be presumed to be Permanent when it is present and has continued for not less than three months * * *."
The claim is for $250 per month during the period from March 20th, 1933, the date of furnishing proof of claim to the company, to the date of bringing this suit, July 1st, 1933; and, in addition thereto, the amount of all premiums paid by plaintiff during the continuance of such disability after March 20th, 1933, up to the time of bringing this suit. There are only two questions presented by this appeal: (1) Is the claim of plaintiff res adjudicata by reason of the verdict of the jury, in favor of defendant on September 29th, 1932, on which judgment was entered, in a suit, between the same parties on the same policy tried in the United States District Court for the District of Maryland, where the issue tried was whether, during the period from June 24th, 1931, the date of proof of claim, to September 28th, 1932, the date of trial, the plaintiff was disabled to such an extent that he was prevented thereby from engaging in any occupation or performing any work for compensation of financial value. And, if the question is not res adjudicata as to plaintiff's condition since the date of said trial: (2) Is there any evidence in the record of sufficient probative force to carry the case to the jury, tending to show that plaintiff was so disabled during the period from March 20th, 1933, the date of the second notice and proof of claim, up to the time of the bringing of the present suit?
The trial court refused plaintiff's prayers (which were presented on the theory that the verdict in the former *Page 413 trial was not conclusive as to plaintiff's condition since the date of that trial), and granted defendant's general demurrer prayer, and also its demurrer prayer instructing the jury that by the judgment in the federal court it was conclusively established that the plaintiff was not, during the period from June 24th, 1931, to September 28th, 1932, disabled to such an extent that he was prevented thereby from engaging in any occupation or performing any work for compensation of financial value, and that there is no evidence legally sufficient to show that he has since September 28th, 1932, and on or before March 20th, 1933, become disabled to such an extent, and that therefore their verdict must be for the defendant. The only exception is to the ruling of the court on these prayers.
The issue presented in the present case, as to the later period, is identical with that presented in the former case, as to the earlier period; and it is conceded by appellant that the former verdict and judgment are conclusive as to plaintiff's condition up to the date of the former trial. But his contention is that it does not follow that his condition was the same after that trial: and that there was evidence tending to show that plaintiff's disease was progressive and that it grew worse and more disabling after the time of the former trial. All the physicians produced by plaintiff, except Dr. Everhart, testified as to examinations made, and history given them by plaintiff, prior to the time of the former trial. While Dr. Everhart was his physician and had seen him about once a week for several years up to the trial of the present case, it does not appear that he made a regular examination of his physical condition after November 9th, 1929. He saw him at the doctor's office some time during the month of the trial.
"Q. Did you notice any difference in the condition of Mr. McDonald now from what it was on September 29th, 1932, or immediately after that, when you saw him next after that? A. Well, from his history, I believe that he is worse in this way, but just from the physical condition I believe that his condition is about the same * * *."
The doctor had just before testified that when plaintiff *Page 414 visited him he constantly told him he should avoid any mental or physical exercise that would have the least tendency to bring on these attacks. "He would report and tell me of things that would bring on these attacks, and my advice to him was not to repeat them — to avoid them. Avoid anything that would tend to bring on these attacks."
On cross-examination witness was asked.
"Q. Well, do you tell the jury to-day that Mr. McDonald is simply to sit still and do nothing? A. I tell the jury that the best thing for Mr. McDonald is to lead a quiet life and to avoid those physical and mental activities that have the least tendency to bring on attacks. I think Mr. McDonald can best tell what will bring on an attack. Q. Now, doctor, you don't mean to tell the jury that physicians go by the patient's fears in that matter altogether? A. No, but I think a man in Mr. McDonald's condition would be apt to become worried, if he attempted to transact business, and since he has told me that efforts to attend to business bring on attacks, I think he should avoid such attempts. Q. Do you think then it would injure him to sit quiet and talk to his customers? A. Yes, sir; I told him I thought he should give up that sort of thing. Q. Is it commonly understood among physicians that patients must give up the slightest effort to talk about or to attend to business in a moderate way? A. Well, it is common when it is a thing which brings on attacks of angina pectoris. I don't recall that he has told me that since 1929."
It will thus be seen that Dr. Everhart's testimony leaves much doubt as to whether anything had happened since the former trial, other than what the patient had told him (and he doesn't seem to be very positive about that), to satisfy the doctor that plaintiff's condition had changed for the worse since the time of the former trial. Physicians produced by defendant negative the claim that plaintiff is totally disabled, and also the diagnosis of angina pectoris. But, of course, for the purposes of the question before us, we must disregard testimony produced by defendant. *Page 415
As the record stands, the only substantial testimony in the case to show any material change in plaintiff's condition since the former trial is that of plaintiff himself, and that is not very strong or very different from that given by him at the former trial, except that he testified that his attacks since the former trial had been more frequent and much more severe. The testimony of his physicians was much the same at both trials.
But it must be remembered that the verdict of the jury in the former trial was, not that plaintiff did not have angina pectoris, but that he was not then totally disabled. The testimony of his physicians was that the disease is progressive and that plaintiff should not do anything that induced the attacks. This, together with plaintiff's testimony that the slightest physical or mental effort brought on the attacks and that these attacks were more frequent and more severe, was sufficient to take the case to the jury; and it was for the jury to pass on the weight of all the testimony and to determine whether plaintiff had become totally and permanently disabled since the former trial.
It would be both wearisome and superfluous to cite authority for the proposition that, in Maryland, issues of fact must be submitted to the jury when there is any evidence of probative force to support them, however strong the evidence to the contrary may be, and whatever may be the opinion of the court as to the merits of the case. The court must assume, in the first instance, that the jury will fairly weigh all the testimony, and will exercise its conscience, common sense, and experience in so doing; and that it will not mulct in damages an insurance company when on the same testimony it would not have required an individual defendant to pay. But if the trial court is satisfied in any case that the verdict is the result of sympathy or prejudice, and that it would be iniquitous to permit it to stand, it is just as much its duty to grant a new trial, as it was to submit the case to the jury. This is the only remedy our law provides for cases of such miscarriage of justice, and courts should not withhold it. *Page 416
For the reasons stated we think there was error in granting the prayers of the defendant. The prayers offered by plaintiff should have been granted, with a modification of the measure of damages prayer by inserting after the word "month" the words "for such time as the jury find the total and permanent disability continued." Defendant's E prayer would have been correct if after stating that the judgment in the federal court was conclusive as to the period between June 24th, 1931, and September 28th, 1932, it had further instructed that in order to find for the plaintiff the jury must find from the evidence that plaintiff had become totally and permanently disabled since September 28, 1932, to such an extent that he was prevented thereby from engaging in any occupation or performing any work for compensation of financial value.