Bean v. Ætna Life Ins. Co.

• Decision Date: 26 September 1903
• Citation: 78 S.W. 104
• Court: Tennessee Supreme Court
• Parties: BEAN v. ÆTNA LIFE INS. CO.

Page 104

78 S.W. 104

BEAN v. ÆTNA LIFE INS. CO.

Supreme Court of Tennessee.

September 26, 1903.

Appeal from Chancery Court, Hawkins County; Hugh G. Kyle, Chanceller.

Action by James M. Bean against the Ætna Life Insurance Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Wolfe & Tarter, for appellant. Smith & Carswell, for appellee.

NEIL, J.

This was an action brought in the chancery court of Hawkins county on a policy of insurance which contained, among other things, the following provisions:

"Ætna Life Insurance Co., of Hartford, Conn., Special Health Policy; Weekly Indemnity, $5.00; Premium, $2.00.

"In consideration of the warranties made in the application for this insurance, which is hereby referred to and made a part hereof, and of the sum of $2.00, does hereby insure James M. Bean, of the town of St. Clair, County of Hawkins, State of Tennessee, under classification preferred, being a minister by occupation, for the term of twelve months from noon of the 25th day of October, 1901.

"Temporary Disability: In the sum of $5.00 per week, against loss of time for the period of not less than seven days, nor more than twenty six weeks, during which he shall, independently of all other causes, be continuously and wholly disabled and prevented by acute meningitis, anthrax, appendicitis, apoplexy, asiatic cholera, brain fever, carbuncle, cerebro-spinal meningitis, chicken pox, diabetes, diphtheria, epilepsy, erysipelas, hydrophobia, malignant pustule, measles, mumps, peritonitis, pleurisy, pneumonia, scarlet fever, varioloid, yellow fever, from transacting any and all kinds of business pertaining to his occupation above stated."

Then follow provisions concerning permanent disability, which need not be quoted here.

The policy then contains a provision, under the form of a condition, that the insurance begins and ends at 12 o'clock noon; another, "that the insurance does not cover temporary or permanent disability resulting from voluntary or unnecessary exposure to contagion or infection, nor from any disease resulting directly or immediately from the use of intoxicating liquors, or narcotics, nor from any disease or sickness other than those specified above, nor from any disease or sickness for which the insured is not regularly treated by a physician, nor from any disease or sickness resulting from a surgical operation, or contracted during war, or while engaged in military or naval service."

Then follows this provision: "3. This insurance does not cover disability, temporary or permanent, from any disease if contracted within fifteen days from noon of the date of this policy," etc. The policy was dated October 25, 1901.

The bill alleges, upon the subject of plaintiff's illness, that on November 2, 1902, after taking out the insurance, "This complainant took down sick with diabetes, and was disabled by reason of said disease from pursuing his regular occupation or profession as a minister, or any other work or business, for pleasure or for profit, for at least 26 weeks, and continued in a weak and delicate state of health on into the following summer." For this illness the complainant sues and claims $130, that is, for 26 weeks, at $5 per week.

Numerous defenses were made by the demurrer, but we need not consider any of them, except in so far as they raise the question that the complainant could not recover because he contracted the disease of diabetes — one of the diseases insured against — within 15 days, above mentioned in the last quotation from the policy.

Of course, if this clause of the policy is valid, the demurrer must be sustained. It is insisted, however, that it is repugnant to a prior clause which expresses the main purpose of the contract, and should be rejected.

When two clauses of a contract are in conflict, the first governs rather than the last. Wis. Marine, etc., Bank v. Wilkin, 95...