American Life Ins. Co. v. Buntyn

• Decision Date: 25 May 1933
• Docket Number: 1 Div. 772.
• Citation: 148 So. 617,227 Ala. 32
• Parties: AMERICAN LIFE INS. CO. v. BUNTYN.
• Court: Alabama Supreme Court

148 So. 617

227 Ala. 32

AMERICAN LIFE INS. CO. v. BUNTYN.

1 Div. 772.

Supreme Court of Alabama

May 25, 1933

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Bill for cancellation of a policy of life insurance by the American Life Insurance Company of Alabama against Genevieve Pradoso Buntyn, and cross-bill by respondent. From a decree for respondent, complainant appeals.

Affirmed.

B. F McMillan, Jr., of Mobile, for appellant.

Robert H. Smith, of Mobile, for appellee.

BROWN Justice.

The original bill was filed by appellant to effect a rescission and cancellation of a policy of insurance issued to Daniel Andrew Buntyn on the 1st day of October, 1931, insuring the life of said Buntyn, and naming the respondent, Genevieve Pradoso Buntyn, the insured's wife, as the beneficiary.

The ground on which the bill seeks to rescind the contract and cancel it is that the insured in his written application for the issuance of the policy falsely represented that he had never had a surgical operation, except for hernia, and that said operation was without "after effects," while in fact insured knew that he had an operation in which one of his testicles was removed, and falsely represented that he had never had "a disease of the genito-urinary organs," and had never had a cancer or tumor of any kind; that in fact he died, within three months from the receipt of the policy, from a malignant tumor or cancer.

The bill alleged a previous tender to the respondent of the premiums, and offered in the bill to pay said premiums upon cancellation of said policy.

The respondent answered, denying the allegations of the bill charging fraud, alleging that insured stated to the defendant's agent, while said agent was taking and preparing said application, that he consulted Dr. Henderson who advised an operation, and that said surgeon operated and removed his right testicle; that said agent wrote insured's answers, and stated to insured that the answers written in said application were the proper answers to said questions. The respondent made her answer a cross-bill praying for a decree against the complainant for the sum stipulated to be paid with interest.

On final submission on pleadings and proof, the court denied complainant relief, and granted the respondent relief as prayed in the cross-bill.

The policy contained the following clause: "This policy * * * shall be incontestable after one year from date of issue if the insured is then living, except for non-payment of premiums," etc.

The equity of the original bill is rested on the theory that it was incumbent on the insurer to institute some legal proceedings contesting the validity of the policy, though it had matured by the death of the insured, and no suit had been instituted or was pending when the bill was filed. The following cases are cited to sustain this theory: Jefferson Standard Life Ins. Co. v. McIntyre (C. C. A.) 294 F. 886; Powell v. Mutual Life Insurance Co. of N. Y., 313 Ill. 161, 144 N.E. 825, 36 A. L. R. page 1239; National Life & Accident Ins. Co. v. Nagel, 260 Mich. 635, 245 N.W. 540; Priest v. Kansas City Life Insurance Co., 119 Kan. 23, 237 P. 938, 41 A. L. R. page 1100; Louisiana State Life Ins. Co. v. Phillips, 223 Ala. 5, 135 So. 841, and others. See contra, Pacific Mut. Life Ins. Co. of California v. Strange (Ala. Sup.) 145 So. 425.

However, the equity of the bill was in no way contested before the trial court, and is not questioned here. Therefore we confine ourselves to a consideration of the questions presented by the parties, and pretermit any decision on this question.

The evidence is without dispute that the policy was issued on the faith of the information contained in the written application therefor, without medical examination, and the evidence tends to show that, if officers and agents of the insurer who were charged with the duty of passing on applications and issuing policies of this character had been informed of the true state of Buntyn's health, the policy would not have been issued-certainly, without further investigation.

The evidence is further without dispute that insured was operated on by Dr. Henderson in April, 1931. Dr. Henderson testified as to this operation: "He came to us about a year before his death, or it may have been longer. I have it on my records but don't remember the exact date. He complained of a swollen testicle, which he stated had occurred following an injury. We treated him and the acute swelling subsided somewhat, but the testicle never returned to normal. He continued complaining of it causing him pain, and it stayed larger than it should have been and became hard. We saw him every week or so from then until the time he was operated on. The time he was operated on the first time was-you have that date which I gave you. It was in April of 1931 when we advised him to have that testicle removed, as it was useless from a functional standpoint and might possibly cause trouble later if not removed, and that was done. * * * He said that he felt all right and as far as we could see he was in good health. He came to the office, I suppose for about a month or six weeks after the operation when we discharged him and he was evidently well then."

Immediately following, this witness testified as to the circumstances and cause of Buntyn's death:

"Then I never saw him again until around about two or three weeks before he died. The date of his death was in January of 1932. He came to our office about three weeks before his death. He was sent around there by Dr. Townsend, who had sent him to us. He had been complaining of kidney trouble. The history that he gave at that time was that for two or three months before this he had been complaining of pain in his back and the upper part of his abdomen on the left side. Dr. Hale treated him. He didn't improve and then he went to Dr. Townsend, who examined him and he thought that he could feel a mass in the upper part of his abdomen on the left side. He knew that we had done the other operation, and, while he didn't know if there was any connection between the two, he sent him to us to examine him, and he said that the cause of his trouble was not kidney disease. I examined him and was not sure that I could feel the mass. He was complaining of quite severe pain, and the pain was so great that I told him he should be in bed. I sent him to the City Hospital and watched him there for a day or two, and then decided to perform what we call an exploratory laparotomy, to open up the abdomen and see if there was a mass there or what was there. We did that, and I think he lived about six or seven days after the operation before his death. We found a very rapidly growing tumor in the left upper portion of the abdomen. This tumor seemed to start over in the lower right quadron of the abdomen and had grown in that direction. We simply saw it was useless to try to remove it, so we closed him up and came out, and he died in five or six days. That tumor was malignant. We thought at the time from the gross appearance of the tumor that it was malignant; it was too extensive to try to remove. I think the pathological report of his death showed that it was malignant. Laymen speak of a malignant tumor as a cancer and we do too and this was cancer, and he died from the effects of that. Of course the vital statistics bureau requires that in a case operated on the report shows that they usually die of the operation. He would have died of this tumor regardless. He may have lived a week or two weeks or a month longer. You cannot tell about that. The tumor that we found could have been traceable to the affected testicle. We endeavored to find the pathological report of the testicle that was removed but due to some error or to the fact that they were not making those examinations at the City Hospital at the time the first operation was done, they never made a pathological report. We could not know whether that testicle had any malignant change or whether it was simple infection or just a trauma that caused it. At the time the symptoms of the pain were such that it felt more like a tubercular thing than anything else, not knowing the original cause of that swollen testicle, other than trauma, other than injury, we cannot say whether the tumor in the abdomen was caused from the testicle or not. As a rule, when a cancer of the testicle is advanced far enough to cause symptoms to bring the attention of the patient or the physician to it, it has progressed too far to remove. In other words, even if the testicle had been removed earlier, if it had been malignant, it would have gone ahead. I don't know and have never been able to make up my mind as to whether the trouble in the abdomen was the same trouble that caused the trouble in the testicle. At the time the operation was done I was not there. I was of the opinion that it was infectious and not malignant. If it had been malignant, I would have advised him to have X-ray treatments.

"To my definite knowledge I would

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