Aetna Life Ins. Co. v. McAdoo

• Decision Date: 20 November 1940
• Docket Number: No. 11721.,11721.
• Citation: 115 F.2d 369
• Parties: ÆTNA LIFE INS. CO. v. McADOO.
• Court: U.S. Court of Appeals — Eighth Circuit

115 F.2d 369 (1940)

ÆTNA LIFE INS. CO. v. McADOO.

No. 11721.

Circuit Court of Appeals, Eighth Circuit.

November 20, 1940.

S. Lasker Ehrman, of Little Rock, Ark. (J. Paul Ward, Grover T. Owens, and E. L. McHaney, Jr., all of Little Rock, Ark., on the brief), for appellant.

S. M. Casey, of Batesville, Ark., and Shields M. Goodwin, of Little Rock, Ark., for appellee.

Before STONE and GARDNER, Circuit Judges, and OTIS, District Judge.

GARDNER, Circuit Judge.

This was an action brought by appellee as plaintiff below against the Aetna Life Insurance Company, appellant herein, to recover on a policy of life insurance on the life of her father, Alonzo D. McAdoo, under which policy she was the named beneficiary. The parties will be referred to as they appeared below. This is the second appeal in this case. On the first trial, the lower court directed a verdict in favor of the plaintiff. On appeal, the case was reversed and remanded for re-trial on account of the refusal of the lower court to admit certain evidence proffered by the defendant. Aetna Life Insurance Company v. McAdoo, 8 Cir., 106 F.2d 618.

On October 7, 1935, defendant delivered to the employees of the Batesville Grocery Company, including Mr. McAdoo, a wholesale policy of insurance. The policy issued to McAdoo was dated October 1, 1935, in the principal sum of $4,000. That policy provided that it should not become effective until the first payment upon it was paid during the good health of the insured. On September 21, 1936, McAdoo applied to the company for conversion of the wholesale policy to an ordinary life non-participating policy, with a premium of $102.64, payable semi-annually. He paid the first annual premium in cash. The application contained a request that the policy be dated back to September 3rd. In this second policy, plaintiff was named as beneficiary. No physical examination was required as the original policy gave the right of conversion without such examination. Both policies contained clauses making them incontestable after they had been in force for two years during the lifetime of the insured. Insured died February 24, 1937, within two years of the date of the issuance of the first policy. His death was caused by cancer.

Upon the trial, defendant admitted the issuance of the policies and the death of the insured, but defended on the ground that the insured was not in good health when the policy was delivered and the first premium paid. At the close of all the testimony, the defendant moved for a directed verdict, which was denied, and the case was submitted to the jury upon instructions to which no exceptions are urged on this appeal. The jury returned a verdict in favor of the plaintiff, and from the judgment entered thereon this appeal is prosecuted.

On this appeal defendant relies solely upon the alleged error of the lower court in refusing to direct a verdict in its favor. Defendant's counsel, in their brief, say: "The appellant does not contend that there was any error in the charge given by the court to the jury. On the contrary, as we have heretofore stated, the charge correctly states the law."

This limits the issue to a very narrow margin, to-wit: Was there substantial evidence to sustain the verdict? As defendant accepts the instructions given by the court as correct, they become the law of the case for purposes of this appeal. F. W. Woolworth Co. v. Carriker, 8 Cir., 107 F.2d 689. The court, in its instructions, told the jury that there was but one issue in the case, and that was whether McAdoo was in good health on October 7, 1935; that if he was not in good health at that time, their verdict must be for the defendant regardless of whether McAdoo was aware of the fact that he was not in good health at that time. The court on the question of good health said in its instructions: "You are further instructed that a mere temporary indisposition which does not tend to weaken or undermine the constitution does not render the policy void. You are further instructed that the term `good health' means that the insured had no grave, important or serious disease and that he was free from any ailment that seriously affected the general soundness or healthfulness of his system."

The Supreme Court of Arkansas, in Lincoln...