Arant v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N
| Citation | 150 F. Supp. 82 |
| Decision Date | 27 March 1957 |
| Docket Number | Civ. A. No. 5418. |
| Parties | Millon ARANT, Plaintiff, v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION, Defendant. |
| Court | U.S. District Court — District of South Carolina |
J. A. Spruill, Jr., Cheraw, S. C., for plaintiff.
R. B. Herbert, Jr., Columbia, S. C., for defendant.
In compliance with Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A., I find the facts specifically and state my conclusions of law thereon as follows:
Findings of Fact
1. The plaintiff is a business man and farmer residing at Pageland, Chesterfield County, South Carolina.
2. The defendant is a foreign corporation incorporated under the laws of
the State of Nebraska and maintaining officers, agents and places of business in South Carolina.
3. In September, 1954, the plaintiff suffered from chest pains and his blood pressure ran up above normal. His family physician Dr. D. C. Griggs of Pageland, South Carolina, sent him to a hospital in Charlotte, North Carolina, for observation and diagnosis.
4. The plaintiff was hospitalized for one week in Charlotte and 600 ccs of blood were withdrawn from him. At the end of the week he was sent home. The tentative diagnosis communicated to his family physician was: "Premonitory coronary insufficiency and Polycythemia".
5. The tentative diagnosis was not communicated to the plaintiff. Neither was it confirmed by subsequent examination, nor followed by customary treatment. The plaintiff was restricted to his home for only one week and then allowed to resume his customary activities. His resumption of activities was at first on a limited basis, but these limitations were soon relaxed and he resumed work on a full schedule as before his hospitalization.
6. In November, 1954, an agent of defendant approached the plaintiff at his place of business and solicited his application for a policy of health and accident insurance.
7. The plaintiff told the agent of the defendant that he had been in a hospital for treatment for what he thought was "too much blood". Substantially the same information was given to the agent by one of the plaintiff's brothers immediately before the agent's interview with the plaintiff.
8. The agent stated that he could write a policy to cover plaintiff and the agent filled out an application which was signed by plaintiff.
9. The application filled out by the agent and signed by the plaintiff contained the following questions and answers:
10. In view of the testimony of Dr. D. C. Griggs it appears that the answers to the above questions may have been correct. However, if any one of them was incorrect the plaintiff was innocent of any fraud and did not knowingly make a misrepresentation with the intent to deceive or defraud the defendant.
11. The agent of the defendant, acting in the course and scope of his employment, had knowledge when he filled out the application for the insurance that the plaintiff had had to have blood removed and that he had been recently hospitalized, but he negligently or inadvertently failed to insert this information in the application.
12. The defendant's agent in filling in the application incorrectly or incompletely did not intend to perpetrate a fraud on his principal.
13. The plaintiff did not read the application but assumed that the agent had inserted the information he gave to the agent.
14. On or about November 19, 1954, the defendant issued to the plaintiff its Health and Accident Insurance Policy #XXXXXX-XXM, the plaintiff paying premium in advance to December 1, 1955, in the amount of One Hundred Twelve ($112.00) Dollars.
15. The plaintiff is at present an insurable risk.
16. On or about September 2, 1955, defendant sought to rescind the said policy on the grounds of fraudulent representation and tendered plaintiff its check for One Hundred Twelve ($112.00) Dollars, as a refund of his initial premium.
17. The plaintiff returned the refund checks to the defendant and tendered to the defendant a certified check for One Hundred Two ($102.00) Dollars, in payment of the renewal premium for the year to begin December 1, 1955. The defendant returned both of these checks to the plaintiff.
18. The plaintiff thereupon brought suit for a declaratory judgment that the policy was in full force and effect and defendant sought as an affirmative defense to rescind the contract of insurance on the grounds of fraudulent misrepresentation.
19. The plaintiff's good faith is fully established and the defendant has failed to prove its affirmative defense.
20. The plaintiff is entitled to a declaratory judgment to the effect that his policy #XXXXXX-XXM is in full force and effect and binding upon the defendant with the plaintiff having a reasonable time in which to tender back defendant's refund check and to retender the premium due December 1, 1955, and to tender the premium which came due on December 1, 1956, and after the bringing of this action.
1. The defendant in order to rescind the insurance contract issued to the plaintiff on the ground of misrepresentation in the application must establish, (1) the falsity of the representation; (2) plaintiff's knowledge of its falsity; (3) the materiality of the fact represented; (4) defendant's reliance on the representation, and (5) plaintiff's intent to deceive and defraud.
In Pilot Life Insurance Co. v. Pulliam Motor Co., 4 Cir., 229 F.2d 912, the United States Court of Appeals for the Fourth Circuit recognized the laws of South Carolina to be as stated in Lipsey v. Life Insurance Co. of Georgia, 221 S.C. 291, 70 S.E.2d 349, 351. There the rule as to avoidance of obligation by the insurer for misrepresentation in an application for insurance is stated as follows 229 F.2d 916: ...
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