American Nat. Ins. Co. v. Smith

• Decision Date: 24 March 1934
• Citation: 74 S.W.2d 1078
• Parties: AMERICAN NAT. INS. CO. v. SMITH.
• Court: Tennessee Supreme Court

74 S.W.2d 1078

AMERICAN NAT. INS. CO. v. SMITH.

Court of Appeals of Tennessee, Eastern Section.

March 24, 1934.

Certiorari Denied by Supreme Court October 13, 1934.

Appeal in Error from Circuit Court, Knox County; L. H. Carlock, Judge.

Action by Annie B. Smith against the American National Insurance Company. Judgment for plaintiff, and defendant appeals in error.

Judgment reversed, verdict set aside, and suit dismissed.

Cates, Smith & Long and Wilbur W. Piper, all of Knoxville, for plaintiff in error.

Johnson, Cox & Johnson and Cecil Meek, all of Knoxville, for defendant in error.

DE WITT, Judge.

This is an action brought in the circuit court of Knox county on a policy of life insurance by Annie B. Smith, widow of Lawrence M. Smith, the insured, as beneficiary named in the policy — resulting in a verdict and judgment in her favor in the sum of $544.17, of which $500 is the amount named in the face of the policy, and the balance is interest thereon. The question presented upon this appeal in error is whether or not the trial judge should have sustained the motion of defendant, made at the close of all the evidence, for peremptory instructions in favor of the insurance company, upon the ground that there was no evidence upon which a verdict of the jury for the plaintiff could be predicated. It is insisted that there was no evidence to support the verdict of the jury. The policy contained a provision that no obligation was assumed by the company unless on the date thereof, September 7, 1931, the insured was alive and in sound health. The defense made was that the insured was not in sound health on said date. The insured died on September 14, 1931, of peritonitis resulting from a gastric ulcer. It is insisted that the undisputed, material, determinative evidence compels the sole conclusion that the insured was seriously afflicted with the ulcer on September 7, 1931, and was therefore not in sound health, and had been so afflicted for a considerable time prior to said date.

The policy is one of industrial insurance at a weekly premium of 41 cents. Premiums thereon for the first two weeks were paid and return of these premiums was tendered by the company but refused. Under this policy no physical examination was required or made.

A provision in a policy of life insurance that the insurer assumes no obligation thereunder unless the insured is in sound health at the date of the policy is valid and binding on the insured. Metropolitan Life Insurance Company v. Chappell, 151 Tenn. 299, 269 S. W. 21, 40 A. L. R. 662; Life & Casualty Insurance Company v. King, 137 Tenn. 685, 195 S. W. 585. In these and other Tennessee decisions the phrase "sound health," when used in the sense used in such a policy, does not mean perfect health or imply absolute freedom from bodily infirmity or tendency to disease, but means generally the absence of any vice or disease in the constitution of a serious nature, or that has direct tendency to shorten life, as contra-distinguished from a temporary ailment or indisposition. In Metropolitan Life Insurance Company v. Chappell, supra, it is declared that it is clear from the language of the policy that the insurer's promise of insurance is not absolute but conditional, and that the existence of life and sound health in the insured on the date of the policy is the condition on which the promise is made; that it is the fact of sound health of the insured which determines the liability of the insurer in this character of policies, not apparent health, or his or any one's opinion or belief that he was in sound health. This rule was also applied in Metropolitan Life Insurance Company v. McGowan, 2 Tenn. App. 341, and American National Insurance Company v. Taylor, 13 Tenn. App. 134.

If, therefore, the undisputed, material, determinative evidence warrants only the conclusion that Lawrence M. Smith at the date of the policy was afflicted with a disease or vice in the constitution of a serious nature, or that had a direct tendency to shorten life, the motion for directed verdict should have been sustained and the suit dismissed. If, on the other hand, there is substantial evidence upon which the jury could base a conclusion that he had no grave, important, or serious disease on that date, and was free from any ailment that seriously affected the general soundness or healthfulness of his system, the motion for a directed verdict was properly overruled.

The solution of this question depends upon the controlling or noncontrolling quality of the testimony given in this cause by medical experts. There was a sharp conflict in the testimony of lay witnesses as to the appearance and health of the insured for many months prior to the date of the policy. The plaintiff, his widow, testified that he was in good health prior to his becoming sick two or three days before he died; that during the four years of their married life he had not called the physician; that he was a large man of ruddy complexion, a hearty eater; and that she did not think that she had seen him cough and vomit any during the year preceding his entrance to the hospital. She had not lived with him, but had seen him once or twice a week for two months prior to his last illness as he had lost his employment in April, 1931, and he had gone to live with his mother and she had gone to live with her mother. She admitted on cross-examination that at various times when he would get to coughing he would vomit after meals.

John Phillips, a grocer near to the home of the insured, testified that he had known him for twenty years; that he saw him at his store the day before he went to the hospital and some one mentioned that he was "pretty sick"; that in the years before that time he looked as healthy as any man he knew; that he had not known him to be sick before; and that somebody told him that he had been out in the country the day before gathering pears and had eaten too many pears and had the colic or some other trouble. He said that Smith was in his store on the day after the policy was issued and appeared to be in good health.

M. P. Hill who had worked with Smith for a furniture company prior to April, 1931, testified that during that time he did not have any stomach trouble so far as the witness knew; that he had a good color; that he had seen him lift furniture, stoves, etc., was stout about such things; and that he never knew him to be sick.

Mrs. Johnson, the plaintiff's sister, and her husband testified that about two months before Smith died ...