Harris v. Security Mut. Life Ins. Co.

• Decision Date: 14 November 1914
• Citation: 170 S.W. 474
• Parties: HARRIS v. SECURITY MUT. LIFE INS. CO.
• Court: Tennessee Supreme Court

Page 474

170 S.W. 474

HARRIS v. SECURITY MUT. LIFE INS. CO.

Supreme Court of Tennessee.

November 14, 1914.

Appeal from Circuit Court, Knox County; Von A. Huffaker, Judge.

Action by Hal S. Harris, as executor of one Rogers, deceased, against the Security Mutual Life Insurance Company. Judgment for defendant was affirmed by the Court of Civil Appeals, and plaintiff appeals. Affirmed.

Jourolmon & Welcker, of Knoxville, for appellant. Shields & Cates and Green, Webb & Tate, all of Knoxville, for appellee.

WILLIAMS, J.

This suit is by the plaintiff, as executor, to recover of defendant life insurance company upon a policy of life insurance in the sum of $10,000 issued to one Rogers.

It appears that application was made by the insured under date of August 21, 1909; that the application was received at the home office of the company in Binghamton, N. Y., about the 1st of September 17th; that the policy was dated September 17th; that the same was delivered through the agency of one of the banks of Knoxville, the home of the insured, within a few days after this date. In the application for insurance signed by the insured questions were put as to whether or not the insured had ever been afflicted with renal colic, gravel, or calculus, to which the applicant responded, "No." It appears in the proof, however, that prior to the date of the application the insured had suffered from one or more attacks of renal colic, and that between the date of the application and the date of the delivery of the policy the insured, Rogers, was seized with an attack of renal colic which persisted through several days. His attending physician states that renal colic is primarily a constitutional disease; that he attended the insured from August 30 to September 9, 1909, for the attack of renal colic above mentioned, which was a typical case; that there was a passage of renal calculus on August 30th, though this physician could not recall that any stone was discovered; that the urine of the insured was in a very murky condition, almost black, for a short period; that, when the insured insisted upon being told, he was informed by the physician that he had renal colic.

It further appears that the defendant insurance company had no local agent in Knoxville, either at the date of the application or at the date of the delivery of the policy, and no claim is advanced that any of its agents had information of this last attack; the policy being delivered in ignorance thereof. It appears that the insured made no effort to disclose to the company the fact of this seizure.

The company defends upon the ground that it was the duty of the insured to make such disclosure, and that the failure to do so was such a fraud on the insurer as to vitiate the policy.

The authorities, almost without exception, are in agreement upon the doctrine that an applicant for such a policy must use due diligence to communicate to the proposing insurer facts materially affecting the risk,...