Gambrell v. U.S. Health & Acc. Ins. Co.

Decision Date20 July 1909
Citation65 S.E. 231,83 S.C. 236
PartiesGAMBRELL v. UNITED STATES HEALTH & ACCIDENT INS. CO.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Greenville County; J. C Klugh, Judge.

Actions by Marion Franklin Gambrell against the United States Health & Accident Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Adam C Welborn, for appellant. Wilton H. Earle, for respondent.

GARY A. J.

These two actions were commenced before a magistrate; one for $80 on a health and accident policy, issued by the defendant to the plaintiff, 18th of June, 1906, said amount being for sick benefit from 10th of December, 1906, to 10th of February, 1907, and the other for $90.66 on the same policy, for sick benefit 10th of February, 1907, to 18th of April, 1907. The application for insurance was made upon certain statements, which the plaintiff warranted to be true one of which was: "I have not had any medical or surgical treatment during the past five years." In the preliminary notice of illness the assured stated that he was taken ill on 10th December, 1906, and quit work on that day. To the following questions, propounded in said notice, he made the following answers: "When did a physician first attend you? December 10, 1905. Where? Greenville Sanitarium. Have you had any medical attendance during past five years? None until about 12 months ago." In the physician's preliminary report of illness, appears the following "When and where did you first examine claimant? December 10, 1905, at Greenville Sanitarium. Name the disease causing the disability? Cancer. December 10th had operation performed." The physician who performed the operation testified: "I did not know, in December, 1905, that it was cancer. I thought it only tumors. I did not notify plaintiff that it was cancer until August, 1906. I don't think anybody had. Plaintiff knew all about the operation in 1905. I told plaintiff it was a dangerous operation." The testimony of a witness for the plaintiff was as follows "I was present when application for the policy introduced in evidence was signed by the plaintiff, at the solicitation of W. W. Haskell, agent of defendant, and that the blanks in said application were not filled in. Haskell told Gambrell to sign that paper, and that if he got sick, he would get his money." The defendant's agent testified, he did not know that the applicant then, or had in the past, suffered from cancer in any form, nor did he know that an operation had been performed on him for cancer, or for any other cause, at the time he took said application. The insured died on the 18th of April, 1907. The magistrate rendered judgment in favor of the plaintiff, for the full amount claimed in each case, but on appeal to the circuit court the judgments were reversed, whereupon the plaintiff appealed upon the following exceptions: "(1) The court erred in reversing the judgments in said two cases because the undisputed testimony is that W. W. Haskell, agent of the defendant, told the plaintiff to sign the...

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