#### HEALY *v.*METROPOLITAN LIFE INSURANCE COMPANY.

Lite Insurance; Evidence.

1. A provision in a life insurance policy that the insurer will not be bound unless at its date the insured is in sound health, and that it is void if before that date the insured has had certain specified diseases, are conditions precedent to the liability of the insurer on the policy, notwithstanding a statement in the policy that the application upon which it is written “omits the warranty usually contained in applications,” and no other provision in the policy contains the word "warranty.”

2. A provision in a life insurance policy that it shall be “incontestable after two years, except for fraud or misstatement of age,” is inconsistent with a provision in the policy that if the age of the insured is not correctly given, the amount paid will be adjusted according to the true age, and also with provisions in the policy that the insurer shall not be bound if the insured is not in sound health at the -date *241of the policy, and that it will be void if before that time the insured has had any of certain specified diseases; and if the insured is not in good health at the date of the policy or has suffered from any of such diseases, the policy is voidable on those grounds for two years, but is incontestable thereafter, except for fraud.

'3. Under the guise of requiring proofs of death, an insurance company may not compel a claimant to procure and introduce in evidence in an action on one of its policies, proofs of health.

•4. Where, in an action on a life insurance policy, the plaintiff agrees at the trial that the proofs introduced shall be considered as part of the proofs of death, he is bound by them to the extent of their disclosures, except as such disclosures may be modified by the oral testimony. (Following *Griffith*v. *Metropolitan L. Ins. Co.*36 App. D. C. 8.)

*5.*'Where a policy of life insurance provides that the company shall not be bound unless the insured was in sound health at the date of the policy, and that the policy shall be void if before its date the insured had suffered from pulmonary disease, and the insured died of tuberculosis about ten months after the date of the policy, it was *held,*in an action on the policy, that the evidence was such as to require the case to be submitted to the jury upon the question whether the insured was free from disease and in sound health at the date of the policy.

No. 2280.

Submitted April 5, 1911.

Decided May 1, 1911.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the court in an action upon a life insurance policy.

*Reversed.*

The Court in the opinion stated the facts as follows:

This is an appeal from a judgment of the supreme court of the District upon a directed verdict for the defendant, Metropolitan Life Insurance Company, the action being based upon a policy of insurance issued by the defendant, the Metropolitan Life Insurance Company, on April 12th, 1909, to Della M. Brennan, the plaintiff, Mary A. Healy, being the beneficiary.

Thu policy contains the provision “that no obligation is assumed by the company prior to the date hereof, nor unless *242on said date the insured is alive *and in sound health.”*In the “conditions” contained in the policy it is stated that if the age of the insured is not correctly given, the amount paid in the policy will be adjusted according to her true age; that the “policy is issued upon an application -which omits the warranty usually contained in applications, and *contains the entire agreement between the company and the insured;”*that the terms of the policy cannot be changed or its conditions varied except by written agreement sighed by the president or secretary of the company; that unless otherwise stated, the policy is void “if the insured before its date has been rejected for insurance by this or any other company, or has been attended by a physician for any serious disease or complaint; *or has had before said-date any pulmonary disease,*or chronic bronchitis, or cancer, or disease of the heart, liver, or kidneys;” that “proofs of death” shall be made upon blanks furnished by the company, and contain answers to each question propounded to the claimant, physician, or other persons, and the record, evidence, and verdict of the coroner’s inquest, if any be held; that such proofs of death shall be evidence of the facts therein stated in favor of, but not against, the company. Under the head of “Privileges and Concessions to Policy Holders,” it is stipulated that the policy “shall be incontestable after two years, except for fraud or misstatement of age.” There is no claim of fraud in this case.

At the trial the defendant called as a witness the agent who solicited the risk for the company. This agent, with commendable good faith, testified that he saw the insured weekly for about a year before the policy was written, as he called at her house each week to collect premiums for a child who held a policy in the defendant company during that period; that after several efforts he finally secured an application from Mrs. Brennan, upon which the policy in suit was issued. This policy he delivered to the insured, and collected the premiums thereon weekly from her until about two weeks before Christmas following, when he was told that she was ill; that the premiums were duly paid upon the policy up to the time of Mrs. Bren*243nan’s death; that during the whole time he saw Mrs. Brennan “she did her own housework; went to market, and from all outward appearance she was perfectly healthy.”

A brother of the plaintiff testified that she died on January 26, 1910; that he lived in the same house with his sister for four or five years before the date of the policy, and that as far as he observed she was perfectly healthy at that time; that her health continued to be good until December or the latter part of November, 1909. Plaintiff then introduced proofs of death “for the purpose only of showing compliance with the terms of the policy.” In these so-called proofs of death, the claimant agrees that they “shall be considered as part of the proof of death, ** * **in accordance with the conditions of said policy.” The attending physician is required to state for what disease or diseases he “at any time attended deceased.” Dr. Xilroy, the attending physician, in the blank filled out by him, stated the cause of death as pulmonary tuberculosis, and that his attendance commenced on January 5, 1909, and continued until the date of death. Dr. Kramer certified that he had attended the deceased in April, 1908; that she then had hepatic congestion and incipient pulmonary phthisis. The claimant, in the blank she was required to fill out, also gave the cause of death as tuberculosis, and that the duration of the “last sickness” was six months and twenty-one days.

The plaintiff then called Dr. Kilroy, who testified that he attended the deceased in April, 1908, when “she was complaining of some trouble over the liver;” that he attended her over a month, “during which period she improved very remarkably;” that he again saw her in the winter of 1908-09, when he called at the house to see another patient; that he then prescribed for her on one or two occasions; that he next saw her in the latter part of 1909, when he “was very much surprised to see her in. the last stages of tuberculosis;” that he found no traces of tuberculosis when he treated the deceased in April, 1908, but that he rather suspected that she had the disease when he treated hex-in the winter following. He was not positive, however, until he last saw her in the latter part of 1909. The witness then *244explained that when he then found unmistakable evidences of tuberculosis, he dated the commencement of the disease from the first time he had seen the patient. The witness further testified “that it is extremely difficult to diagnose a case of tuberculosis in its incipiency.”

Dr. Egbert, testifying for the plaintiff, stated that he treated the insured professionally in March, 1908, and November, 1909; that there was no evidence of tuberculosis when he saw her in 1908, but that she was in the last stages of the disease when he saw her in 1909. He concurred with Dr. Kilroy as to the difficulty of identifying a case of tuberculosis in its incipiency. The doctor was then asked: “Taking the surroundings of this woman as you found her in November and December, 1909,—her health and her condition as you found it,— how long, in your opinion, had she been suffering from tuberculosis?” He answered: “It would be impossible to state. I judge it a very acute form of tuberculosis. I don’t think she was sick more than five or six months when I saw her, but, of course, I don’t know,-” that the manner of life and surroundings of the patient were such “as would tend to cause a speedy death if she had tuberculosis.”

Dr. Kramer, the last witness for the plaintiff, testified that he treated Mrs. Brennan in April or May, 1908, at which time “she had an inactive liver and was constipated, and seemed to have soreness over the hipthat from her *general appearance*he thought she had incipient tuberculosis at that time; that unless she was suffering from that disease, she then had no other serious ailment.

Counsel for the defendant then stated that he had “no defense other than are contained in the proofs of death,” and thereupon moved the court to direct a verdict for the defendant, which was done over the objection and exception of the plaintiff.

*Mr. W. Gwynn Gardiner*for the appellant.

*Mr. Benjamin S. Minor, Mr. Hugh R. Rowla/nd,*and *Mr. L. Randolph Mason*for the appellee.

*245Mr. Justice Robb

delivered the opinion of the Court:

We are constrained to hold that the above provisions in the policy relating to the health of the insured at the date of the policy and her prior freedom from certain diseases, standing alone, amounted to conditions precedent, and hence that the company could at any time escape liability by showing that the insured was not in good health at the date of the policy, or that she had previously suffered from the proscribed diseases. *Moulor*v. *American L. Ins. Co.*111 U. S. 335, 341, 28 L. ed. 447, 449, 4 Sup. Ct. Rep. 466. The statement in the policy that the application upon which it was written “omits the warranty usually contained in applications” is well calculated to mislead the people who purchase this form of insurance, especially as no other provision in the policy contains the word “warranty;” but be that as it may, we are unable to perceive any ambiguity in the provisions upon which the company here relies. We are of the opinion, however, that the so-called incontestable clause constitutes a partial waiver of those provisions. After two years from the date of the policy, it is incontestable, except for fraud, the provision in the incontestable clause relating to misstatement of age being inconsistent with and controlled by the other provision in reference to the same subject. The policy was therefore in force from its date and voidable for two years upon any of the grounds reserved therein, but not thereafter, except for fraud. *Mutual Reserve Fund Life Asso.*v. *Austin,*6 L.R.A.(N.S.) 1064, 73 C. C. A. 498, 142 Fed. 398. In that case there was a provision in the policy that it should not be in force unless the insured was in good health when it was delivered. It appearing that he was not in good health at that time, the company contended that the policy was never in force, and hence that the so-called incontestable-clause never took effect. The court, however, ruled that the< incontestable clause was inconsistent with such a contention, and. that the policy was in force from the day of delivery and payment of the first premium, but voidable before the expiration of the time mentioned in the incontestable clause.

*246But we think the court erred in not submitting the' case to the jury. The so-called proofs of death were prima facie evidence against the plaintiff *(Griffith*v. *Metropolitan L. Ins. Co.*36 App. D. C. 8). We *do not*wish to be understood, however, as holding that, under the guise of requiring proofs of death, an insurance company may compel a claimant to procure and introduce in evidence proofs of health. Such a ruling would in effect shift the burden of proof, and be as unreasonable as it would be unjust. In this case the claimant agreed that the proof introduced should be considered as part of the proofs of death, and, in the circumstances, is bound by them to the extent of their disclosures, except, of course, as those disclosures were subsequently modified or explained by oral testimony.

Taking into consideration the testimony of the physicians regarding the extreme difficulty of detecting tuberculosis' in its incipieney; their testimony as to the condition of the insured at the date of the policy; that they were not sure she had tuberculosis until late in 1909, many months after the issnance of the policy; the testimony of one physician as to the acute form of the disease; the testimony of the agent who procured the policy, and who had the best of opportunity to observe the insured ; and the testimony of the brother, we think it a question about which honest minds might easily differ, whether, up to the time of the date of the policy, the insured was afflicted with tuberculosis; in other words, whether or not she was then free from disease, and “in sound health” within the meaning of the policy.

Judgment reversed, with costs, and cause remanded for a new trial. *Reversed and remanded.*