Cunningham v. National Americans

• Decision Date: 24 April 1916
• Docket Number: (No. 353.)
• Parties: CUNNINGHAM v. NATIONAL AMERICANS.
• Court: Arkansas Supreme Court

185 S.W. 786

CUNNINGHAM v. NATIONAL AMERICANS.

(No. 353.)

Supreme Court of Arkansas.

April 24, 1916.

Appeal from Circuit Court, Pulaski County; G. W. Hendricks, Judge.

Action by J. C. Cunningham, administrator, against the National Americans. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

Tellier & Biggs, of Little Rock, for appellant. Bradshaw, Rhoton & Helm, of Little Rock, for appellee.

HART, J.

In January, 1910, the defendant, which is a fraternal benefit society, issued a life insurance policy in favor of Henry Grisard payable to his estate. Grisard died in November, 1914. The defendant admitted the issuance of the policy and the death of the insured, but denied liability to plaintiff by reason of the certificate. Recovery is resisted on the ground that the insured had executed a written application for the insurance wherein he had made certain false statements relative to his health, the truth of which was expressly warranted by him therein. The facts are as follows:

The policy in question was issued by the defendant on the 31st day of January, 1910, and accepted by the defendant on February 11, 1910. The insured made a written application for insurance, and among the questions asked him was the following:

"Question. Have you had any illness, constitutional disease, or injury that has confined you to the house during the past five years? Answer: No."

At the conclusion of the examination the applicant made a certificate that his answers to the questions were true, and that the questions and answers were made part of his application for the benefit certificate; that he warranted his answers to all questions and all statement of facts as to his age, family history, or his physical and mental condition therein contained, was true and agreed that any false statement or concealment of facts should forfeit his right of membership in the association. The benefit certificate itself provided that his application for membership and all statements contained therein were made part of his contract for insurance and were warranted to be full, complete, and true. The application was made on the 25th day of January, 1910.

J. H. Lewis testified for the defendant as follows:

I came to Little Rock, Ark., in February, 1905. I became acquainted with Henry Grisard soon after I came here. In August, September, or October of 1906, he became ill, and after a few days his physician carried him to St. Vincent's Hospital in Little Rock. He remained there a month or maybe more. I went to see him every Sunday while he was in the hospital, and he was seriously ill. I think he was carried to the hospital in 1906 instead of 1905, because I came to Little Rock in February, 1905, and my recollection is that he was carried to the hospital in August, September, or October of the year after I came to Little Rock.

The records of the hospital show that Grisard was admitted to the hospital as a patient on the 9th of August, 1906, but the record does not contain the date he left there.

The case was submitted to the circuit court sitting as a jury. The court found that the insured was carried to St. Vincent's on August 9, 1906, and was treated for an illness within five years...