Schmitt v. Michigan Mutual Life Insurance

The defendant contends that it ■ought to have prevailed upon the trial of this action, because it es

“Have you had any of the following diseases? Of each illness, state date, number of attacks,' duration, severity, complications and results: * ° * (4) Chronic or habitual cough or hoarseness, spitting or coughing of blood, asthma or shortness of breath, or any chest or lung disease? (Yes or No).’*

To this question the applicant answered “No.” The case was submitted to the jury on the assumption that the negative answer to this question constituted a material warranty, the breach of which would avoid the policy; and the defendant insists that the proof established such breach, in that it showed that the insured had suffered from chronic or habitual cough and hoarseness, and from spitting or coughing of blood, and from shortness of breath, and from a chest or lung disease. So far as the chest or lung disease was concerned, the defendant, by its bill of particulars, had limited the alleged breach to “consumption, tuberculosis, or phthisis.” The proposition that the insured had suffered from the disease thus specified in the bill of particulars prior to his application for insurance was not sustained by the evidence. Nor were the other alleged breaches of warranty as to his own health so conclusively made out as to require the jury to find in the defendant’s favor on the issues which they presented. “In construing a policy of life insurance it must be generally true that, before any temporary ailment can be called a disease, it must be such as to indicate a vice in the constitution, or be so serious as to have some bearing upon general health and the continuance of life, or such as, according to common understanding, would be called a disease.” Cushman v. U. S. Life Ins. Co., 70 N. Y. 72 , and cases there cited. It is to be observed that the warranties under discussion were not to the effect that the applicant had never suffered temporarily from habitual cough or hoarseness, or from the spitting or coughing of blood, or from shortness of breath, but that he had never suffered from “diseases” of which these were the manifestations. The case in this respect is like Dreier v. Continental Life Ins. Co. (C. C.) 24 Fed. 670 , where the alleged warranty consisted of a negative answer to the question whether the parties “had any of the following complaints,” and then specified “spitting or raising of blood” as one of them. There the Circuit Court of the United States held that there was no warranty “that the insured never had spitting or raising of blood, but only that he had not had the complaint of spitting or raising blood; equivalent to a warranty that he had not had blood-spitting in such form as to be called a disease, disorder, or constitutional vice.” I think the evidence in the present case, while tending to show that the applicant had suffered from habitual cough or hoarseness, and from spitting or coughing of blood, and from shortness of breath, might fairly be viewed by the jury as insufficient to establish the existence of any disease or malady underlying these manifestations so serious as to have any bearing upon the general health of the applicant and the continuance of his life.

The rulings in the exclusion and admission of evidence have been examined, without disclosing any error. The case appears to have been carefully and most fairly tried, and was submitted to the jury in a charge to which the defendant took no exception. The verdict was neither against the evidence nor against the weight of evidence, and it follows that the judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs. All concur.