Baldwin v. North American Acc. Ins. Co. of Chicago

• Decision Date: 27 October 1927
• Docket Number: No. 5084.,5084.
• Parties: BALDWIN v. NORTH AMERICAN ACC. INS. CO. OF CHICAGO.
• Court: U.S. Court of Appeals — Fifth Circuit

22 F.2d 111 (1927)

BALDWIN v. NORTH AMERICAN ACC. INS. CO. OF CHICAGO.

No. 5084.

Circuit Court of Appeals, Fifth Circuit.

October 27, 1927.

Walter McElreath and Thomas Howell Scott, both of Atlanta, Ga., for appellant.

Grover Middlebrooks and Chauncey Middlebrooks, both of Atlanta, Ga. (Bryan & Middlebrooks, of Atlanta, Ga., on the brief), for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

In November, 1919, the appellee, in pursuance of a written application made by John Baldwin (herein called the insured), issued its accident and health policy of insurance to him, which, subject to the conditions, limitations, and provisions therein contained, insured against: "(1) Bodily injury sustained during the term of this policy through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), and resulting directly, independently, and exclusively of all other causes, in (a) immediate, continuous, and total disability that prevents the insured from performing any and every kind of duty pertaining to his occupation; (b) partial disability (the provision on that subject not being set out in full in the record); (c) death. (2) Illness, as hereinafter defined," etc. The policy provided for the payment to the insured of a stated sum weekly, in case of his suffering total disability, so long as he suffers such total disability. In September, 1922, while the policy remained in force, the insured sustained personal injuries in the way hereinafter stated. Upon his making a claim of total disability sustained by such injuries, the insurer, after investigation, claimed that it was influenced to issue the policy by material false representations made by the insured in his application for insurance, tendered to the insured a check for the full amount of all premiums that had been paid, and demanded the surrender of the policy. The insured accepted the check tendered, which was paid on presentation to the drawee, and complied with the insurer's demand by surrendering the policy in November, 1922.

In July, 1925, the appellant, suing as guardian of the insured, brought a suit against the appellee in a Georgia state court, in which suit the relief sought was: That the pretended cancellation of said policy be decreed to have been void, that the same be set aside, that the policy be declared to be of full force, and that appellant have and recover of the appellee the amount of indemnity which has accrued under the policy, less such premiums as have accrued, or which may accrue upon said policy. The petition in that suit contained allegations to the following effect: In September, 1922, while the policy was in full force, the insured became totally disabled, so as to prevent him from performing any and every kind of duty pertaining to his occupation, "such disability occurring as the result of a strain in changing an automobile tire on the 1st day of September, 1922, for which disability he was then treated by" a named regularly licensed physician, "and such total disability has continued since said date and still continues." As the result of such injury and the total disability resulting therefrom, immediately after the beginning thereof, the insured became disabled mentally, as well as physically; such mental disability being such from the date of his injury as to render him non compos mentis and incapable of managing his...