Commonwealth Life Ins. Co. v. Anglin

• Decision Date: 19 July 1933
• Citation: 65 S.W.2d 239
• Parties: COMMONWEALTH LIFE INS. CO. v. ANGLIN.
• Court: Tennessee Supreme Court

Page 239

65 S.W.2d 239

COMMONWEALTH LIFE INS. CO. v. ANGLIN.

Court of Appeals of Tennessee, Western Section.

July 19, 1933.

Certiorari Denied by Supreme Court December 9, 1933.

Appeal in Error from Law Court, Shelby County; A. B. Pittman, Judge.

Action by Mattie A. Anglin against the Commonwealth Life Insurance Company. From a judgment for plaintiff and the disallowance of a motion for a new trial, defendant appeals in error.

Reversed and remanded.

Fitzhugh, Murrah & Fitzhugh, of Memphis, for plaintiff in error.

Luther H. Graves, of Memphis, for defendant in error.

SENTER, Judge.

The parties will be referred to as in the court below, Mattie A. Anglin, plaintiff, and Commonwealth Life Insurance Company, defendant. This is a suit by plaintiff, Mattie A. Anglin, against the Commonwealth Life Insurance Company on a policy of life insurance, issued by the defendant upon the life of plaintiff's son, Herbert C. Anglin, in the sum of $500, and also seeks to recover 25 per cent. additional as statutory penalty for a failure to pay the policy on the averment that the failure to pay was not in good faith.

To the declaration the defendant filed pleas of nil debit and non assumpsit, and tendered the plaintiff in its said pleas the sum of $15.94, representing the premium paid on said policy, plus interest.

At the hearing of the cause, at the conclusion of all the evidence, a motion for a directed verdict in its favor was made by the defendant, which motion was overruled. The jury returned a verdict in favor of plaintiff in the sum of $600, without designating or dividing the judgment, as so much for principal and so much for penalty. A motion for a new trial was seasonably filed by the defendant, which motion was overruled and disallowed, and, from the action of the court in overruling and disallowing its motion for a new trial, and in rendering judgment on the jury verdict, the defendant prayed and was granted an appeal in the nature of a writ of error to this court, and has assigned errors.

The first assignment of error and the second are directed to the action of the trial judge in overruling defendant's motions for a directed verdict, made, first, at the conclusion of plaintiff's evidence, and renewed at the conclusion of all the evidence.

The third, fourth, fifth, and seventh assignments challenge the action of the court in refusing to give in charge to the jury certain special requests submitted by the defendant after the general charge to the jury had been given.

The eighth assignment is directed to the form of the jury verdict, on the ground that the same is indefinite, in that the verdict of the jury is for a lump sum of $600, and the amount of the policy sued on was $500, and the interest thereon would approximate $40, and the verdict does not show what part of the $600 was intended as principal, or interest or penalty.

The ninth assignment charges error upon the part of the trial judge in refusing to permit the defendant to introduce in evidence, or to even use for the purpose of cross-examining plaintiff, the proof of death made out and signed by the physician of assured.

The tenth assignment charges error upon the part of the trial judge in his charge to the jury on the question or subject of the statutory penalty sued for.

The sixth assignment is directed to a portion of the general charge of the court to the jury, which will be hereinafter set out and discussed.

By the eleventh assignment it is said that there was no evidence to support the verdict of the jury.

We will not take up and discuss each of the assignments of error, or the questions made thereunder in the order in which they are made.

The insured, Herbert C. Anglin, at the time the policy was issued, was a boy about sixteen years of age. The application for the insurance was signed by his mother, Mattie A. Anglin, the plaintiff herein. The application provided on its face, among other things, as follows:

"The undersigned hereby declares and warrants that the representations and answers made above are strictly correct and wholly true; that they shall form the basis and become part of the contract of insurance (if one be issued): That any untrue answers shall render the policy null and void, and that said contract shall not be binding upon the company unless upon its date and delivery the insured be alive and in sound health."

One of the questions asked the plaintiff when she applied for the insurance was whether or not the proposed assured, Herbert C. Anglin, "had or ever had cancer." Her answer to this question was, "No." Another question in the application was, "Is life proposed now in sound health?" And her answer was, "Yes."

The policy contained a provision as follows:

"No obligation is assumed under this policy, prior to its date of delivery, nor unless on said date of delivery the assured is alive and in sound health."

It appears that the assured, Herbert C. Anglin, was operated on in April, 1930, for sarcoma or cancer of the eye. The application for the insurance was signed on July 17, 1930. It also appears that among other questions asked and answered in the application is question 13, as follows: "State accident, operation or disease suffered in last five years? Give full details and severity of each?" Ans. "Cyst removed from r. upper lid, Apr. 2, 1930. No recurrence, wound clean. Storis upper lid improving."

It also appears that the answers were written into the application by the agent of the insurer. Plaintiff testified in substance that at the time the application was signed she told the agent that an operation had been performed on the eye, and told him that a tumor had been removed from the eye. It also appears that, when the application was turned in to the local office in Memphis, the statement in the application with reference to the operation for the removal of a cyst from the eye challenged the attention of the manager of the local office, and he called upon a physician to go to see the applicant and learn the nature and seriousness of the operation. The physician, by direction of the local manager of defendant, went to the home of the assured and talked to plaintiff and to the assured, and was then told by the mother of assured of the operation that had been performed at the hospital for the removal of said formation on the eye. She states, for the removal of a tumor from the eye, and the physician states she said for the removal of a cyst. The plaintiff and other members of the family testified that the young man appeared to be in good health and fully recovered from the operation. The doctor testified that, when he saw the assured on the occasion of his visit, the young man appeared to be in good health. A scar appeared on the eye which was explained as the scar resulting from the operation for the removal of whatever growth was there. The physician testified that he did not think that the operation was for any serious trouble, and the wound appeared to be healing nicely, and he did not make any further investigation. It is shown that within a few months after the policy was issued the assured died of cancer, and it was also shown that the operation performed on the eye was for a cancerous growth, referred to as sarcoma, which is shown to be a cancer.

Appellant contends that it appears from the uncontradicted evidence in the record that the assured was not in good health, or sound health at the time the application was signed for the insurance, and was not in sound health at the time the policy of insurance was delivered and the premium collected.

It was upon this that the defendant largely based its motion for a directed verdict in its favor. The trial judge refused to sustain this motion, and, at the conclusion of all the evidence, again overruled defendant's motion for a directed verdict in its favor. The trial judge proceeded to charge the jury, and the portion of the charge complained of under the sixth assignment of error is as follows:

"But if you find that the boy did not use the word `cyst' and that was the doctor's language, or if you find that even did the boy use the word `cyst' that the doctor in the exercise of reasonable care should have gone to the hospital and examined the records to see what was really removed — the theory of the plaintiff is that this boy gave the doctor all the information they had about it, told him where the thing was cut off of his eye, and who did it, and that therefore, put the company in position to know all or more than he knew about it, and that if the company pleased to stop there and made no further investigation as to what really was the matter with the boy's eye, then the company must stand on that policy and is liable; that if they want to rely on that defense, the company should have pursued the inquiry for the purpose of determining whether there was a malignant disease, or an innocent disease like what they testify existed. It is the law, Gentlemen of the Jury, that if the company was put, through its physician, in possession of all the information that the assured had, and the doctor failed to pursue or to determine the situation and issued the policy, then the company cannot rely upon the defense that he had this cancer. The law about the...