Arnold v. New York Life Ins. Co.

• Decision Date: 01 June 1915
• Citation: 177 S.W. 78,131 Tenn. 720
• Parties: ARNOLD v. NEW YORK LIFE INS. CO.
• Court: Tennessee Supreme Court

177 S.W. 78

131 Tenn. 720

ARNOLD v. NEW YORK LIFE INS. CO.

Supreme Court of Tennessee.

June 1, 1915

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

Action by Rosa M. Arnold against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Caruthers Ewing, of Memphis, for appellant.

Marion G. Evans, of Memphis, for appellee.

NEIL C.J.

On December 14, 1911, George Arnold, the husband of the complainant, signed an application for the purpose of obtaining a policy of life insurance for $10,000 in the defendant company. Soon thereafter the usual medical examination was had. Some independent inquiries were made by the company through its inspection agency in Memphis concerning the life, health, and habits of the applicant. All being found satisfactory, the policy was issued.

Among the questions required to be answered in the application was No. 9, as follows:

"Have you ever had or suffered from any of the following diseases? Answer 'Yes' or 'No' to each part of this query below:

A. Of the brain or nervous system?

B. Of the heart or lungs?

C. Of the stomach or intestines, liver, kidneys, or bladder?

D. Of the skin, middle ear, or eyes?

E. Rheumatism, gout, or syphilis?"

To all of these he answered "No," except the last. To this he replied that he had had rheumatism, one attack in May 1911, lasting two days; that it was in his right foot, was mild, and the recovery complete.

The assured died of dropsy on December 9, 1912. The physician in attendance described his condition as follows:

"He was very much swollen from dropsy, short of breath, very weak pulse, blue in color, and complaining of a good deal of pain in his chest and abdomen. Q. To what was the dropsical condition attributable? A. The dropsy was due to the failing of the heart muscle, due to secondary disease of the valves."

Proofs of death were duly furnished, and payment was refused by the defendant company.

The application was not attached to the policy, nor was any copy of it.

Nevertheless the company set up in defense to the bill the following printed statement contained in the application, viz.:

"I declare, on behalf of myself and of any person who shall have or claim any interest in any insurance made hereunder, that I have carefully read each and all of the above answers; that they are each written as made by me; that each of them is full, complete, and true; and that to the best of my knowledge and belief I am a proper subject for insurance."

Defendant insisted that contrary to the answers given to the question quoted supra, and to other questions propounded in the application, the insured had really had diseases of the intestines, of the liver, of the bladder, of the kidneys, of the stomach, of the heart, and that he had gout; that he knew he had these diseases at the time the application was made, and denied the fact for the purpose of defrauding the company. It was also averred in defense that the insured, contrary to representations made in the application, used alcohol to excess, and that he fraudulently denied this fact. The points pressed were, however, with reference to the alleged disease of the heart and gout, and the excessive use of alcohol.

A jury was called, and to appropriate issues submitted to them answered that at the time the insured made the application he had never, in fact, had any disease of the heart; that he did not make any misrepresentations when he stated that he had never had any disease of the stomach, or that he had never used alcohol to excess; that he did misrepresent when he answered that he had never had gout, but that such misrepresentation was not material to the risk; also that the defendant had not, with full knowledge of this misrepresentation, elected to waive it.

There was evidence to sustain the verdict.

Upon this verdict the chancellor entered a judgment against defendant for the amount of the policy and interest. Thereupon the company appealed to this court, and has here assigned errors.

These errors cover all of the defenses made in the answer, and have all been fully considered, discussed, and disposed of in an oral opinion delivered by the court in the presence of the respective counsel. In this opinion we shall consider only one point. It is not embraced within those mentioned.

All of the defenses were based on alleged misrepresentations contained in the application. But, as stated, the application was not attached to the policy. We have two statutes bearing on this subject:

Acts 1907, c. 457:

"An act to be entitled 'An act establishing standard provisions and conditions to be contained in policies of life insurance issued by companies organized under the laws of this state and companies licensed to do business in this state.'

Section 1. Be it enacted by the General Assembly of the state of Tennessee, that 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...