Adams v. Manhattan Life Ins. Co.
| Decision Date | 21 December 1939 |
| Citation | 141 S.W.2d 930 |
| Parties | ADAMS v. MANHATTAN LIFE INS. CO. |
| Court | Tennessee Supreme Court |
Farmer, Denney & Leftwich, of Nashville, for plaintiff in error Mrs. Adams.
Seay, Stockell & Edwards, of Nashville, for defendant in error Manhattan Life Ins. Co.
This is an action, by the beneficiary, the plaintiff Mrs. Adams, to recover on a $5,000 policy of insurance issued to Clarence C. Adams by the defendant insurance company.
This policy was issued on February 8, 1937. Adams became ill with a heart attack in March, 1937, and died on October 7, 1937, of heart disease, described by the doctor as an enlarged, "decompensating heart."
Among the questions required to be answered in the application were No. 17 and No. 18 of Part 2, as follows:
To all of these questions he answered, "No."
To the question "18(f) Are you in Good Health?" he answered, "Yes."
The defendant insurance company filed three pleas: (1) nil debet; (2) nonassumpsit; and (3) a special plea to the effect that the insured had answered falsely questions in the application as to whether he had been rejected by other insurance companies, whether he had had certain diseases, and whether he had been treated by physicians within the past five years; and that this policy was therefore procured by fraud.
The insurance company insists that he had had syphilis, and had heart disease when he made this application; that he knew these facts and denied the same for the purpose of defrauding the company.
It is also insisted that he drank intoxicating liquor, but denied this fact; and that he had been rejected by another insurance company, and answered that he had been "postponed."
The plaintiff filed a replication in which she averred that the defendant could not rely upon alleged misrepresentations in the application, because the policy did not contain a written copy of the application (Code, sec. 6179(4), as question 19 of Part 2 was as follows: and the examining physician wrote after this question, "(See remarks)," but the remarks are not a part of the copy of the application.
It appears that these "remarks" were as follows:
The defendant filed a rejoinder, that these "remarks" were made by the examining physician and were not a part of the application attached to the policy.
The defendant paid into court the amount of the premiums, $94.74, which had been tendered to the plaintiff and refused.
The plaintiff filed a motion to strike that part of the rejoinder which attempts to set forth these "remarks" because they were not a part of the application, and a demurrer to that part of the rejoinder which averred that these remarks did not have to be attached to the policy.
The court overruled this motion and this demurrer.
The case was tried by the judge and a jury. At the conclusion of the evidence the defendant moved the court for peremptory instructions in its favor on the ground that there was no evidence upon which a verdict could be predicated against the defendant and in favor of the plaintiff.
Thereupon the plaintiff moved the court to exclude the evidence in regard to statements made in the application, because a copy of the entire application was not attached to the policy, and to direct a verdict for the plaintiff. And further moved the court to exclude from the jury the depositions of the officers of the company to the effect that the company would not have issued the policy had it known that the statements made in the application were untrue.
The court overruled the plaintiff's motion and sustained the defendant's motion and directed a verdict for the defendant.
The plaintiff's motion for a new trial was overruled, and she appealed in error to this court and has assigned errors, which are, in substance, as follows:
The court erred in failing to hold that the insured's application was not made a part of the policy and that therefore the insurance company was precluded, under Code, sec. 6179(4), from introducing evidence to show that the answers made in the application were false.
Two propositions were raised by the pleadings:
(1) Was the insurance company precluded from introducing evidence showing false statements contained in the application, because of its failure to attach the entire application to the policy?
(2) Was the issuance of the policy procured by the fraud of the insured?
The facts of the case are as follows:
Clarence C. Adams was the manager of an insurance agency, in 1937, and a man of the age of forty-one years. He had been engaged in the insurance business all his business life.
He was married in 1916 and had four children.
In 1930 he had business reverses, lost all his property, and allowed his life insurance policies to lapse.
Dr. Ira J. Sellers treated him, in Birmingham, in 1928, for syphilis. He gave him a Wasserman test which was positive four plus. He treated him twelve or thirteen months. In 1932 and again in 1934 he treated him for gonorrhea.
Dr. Sellers testified that while he was treating Adams for both syphilis and gonorrhea Adams told him he wanted to be cured so he could obtain insurance to protect his family.
In 1930 Dr. William D. Sellers examined him and found he had high blood pressure and enlargement of the heart.
Adams applied for life insurance to the Kansas City Life Insurance Company in 1933. Dr. C. A. Donnelly examined him for the company and advised the company to reject him because of enlargement of the heart and arterial hypertension, and the company rejected him, and so informed him.
In 1935 Adams moved to Nashville and became manager of a fraternal insurance agency. He met the agent of the Manhattan Insurance Company, West, and told him about his business reverses and the lapsing of his life insurance. West solicited him for insurance. About six months later Adams signed an application for the policy involved in this suit.
The policy contained the following provisions:
1. The first question involved is whether the insurance company is precluded from introducing evidence showing that the statements contained in the application were false, where the policy did not contain a copy of the whole application.
Code, sec. 6179, provides: "No policy of life insurance shall be issued in this state or be issued by a life insurance company organized under the laws of this state unless the same shall contain the following provisions * * * (4) * * * that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and that no such statement shall avoid the policy unless it is contained in a written application, and a copy of such application shall be indorsed upon or attached to the policy when issued."
The insurance company cannot introduce evidence to attempt to show that the answers in the application are untrue unless the entire application is attached to the policy. Arnold v. Insurance Company, 131 Tenn. 720, 177 S.W. 78; Lindsey v. Metropolitan Life Ins. Co., 10 Tenn.App. 293, 303; but,
2. Although the application is not admissible in evidence as a part of the contract if a copy of it has not been attached to the policy in accordance with the statute, it may be admitted to prove that the policy was procured by fraud and misrepresentation.
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