Helfer v. Mutual Ben. Health & Acc. Ass'n

• Citation: 96 S.W.2d 1103,170 Tenn. 630
• Parties: HELFER v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.
• Decision Date: 17 October 1936
• Court: Tennessee Supreme Court

96 S.W.2d 1103

170 Tenn. 630

HELFER v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.

Supreme Court of Tennessee.

October 17, 1936

Appeal from Circuit Court, Carter County; Shelburne Ferguson sitting by interchange with Ben Allen, regular judge.

Action by John Helfer against the Mutual Benefit Health & Accident Association. From a judgment of the Court of Appeals affirming the judgment of the trial court for defendant plaintiff appeals.

Reversed and remanded.

Guinn Mitchell & Erwin, of Johnson City, for plaintiff in error.

Allen Nelson & Allen, of Elizabethton, and Ray H. Jenkins, of Knoxville, for defendant in error.

DAVIS Special Judge.

Plaintiff, Helfer, sued to recover total and permanent disability insured against through a policy issued to him by the defendant. Under this policy, if there is liability, the plaintiff is entitled to disability benefits of $100 per month. Plaintiff was induced to apply for such accident insurance through defendant's agent, and applied for his first policy on November 12, 1929. That policy was issued, and provided a monthly benefit of $50 for total and permanent disability. Later, and on November 16, 1931, the plaintiff was induced to increase his protection by accepting a policy which would pay him $100 per month for total and permanent disability, and he accepted such additional insurance, and the first policy issued to him was surrendered to defendant, and the new policy, carrying, of course, an increased premium, was issued to the plaintiff.

Plaintiff was an employee of the American Bemberg Corporation, at Elizabethton. While at his work, on or about November 27, 1932, a bale of cotton fell from the top of a pile some ten feet or more in height, struck plaintiff in the back, and seriously injured him. He was in a hospital for several weeks, and the first nine days immediately following the injury could not turn in bed, and there is material proof that as the sole result of this accidental injury plaintiff is totally and permanently disabled.

In his application for the policy which was issued in 1929 the plaintiff made answers to questions propounded to him, and when the amount of coverage was increased in 1931, the application attached to the 1929 policy was simply copied. The plaintiff is able to sign his name, and did sign the applications, but he cannot read and write, and the agent filled in the answers to the questions in the application.

The defendant insists that plaintiff cannot recover because of false and fraudulent answers given to the questions in his application. In question 11, plaintiff was asked if he was sound physically and mentally, and answered, "Yes." He was asked if he had ever had hernia, and answered, "Yes." Under question 12, plaintiff was asked if he had ever had rheumatism, epilepsy, diabetes, heart disease, tuberculosis, or any disease of the brain or nervous system, to each of which questions he answered, "No." Under question 13, he was asked if he had received medical or surgical advice or treatment, or had any local or constitutional disease within the past five years, and answered, "No." Under question 14, the applicant disclosed that he had been operated on by a physician or surgeon in 1903, for right hernia, and stated the result as cured.

The defendant pleads that as a matter of fact, when the applications were made, plaintiff was not sound; that he was maimed and deformed in that he had both a right and left hernia, had theretofore had rheumatism and heart disease; had had medical or surgical advice or treatment for a constitutional disease within five years of the application; that the operation for right hernia had given only temporary relief, and that plaintiff was suffering from both a right and left hernia.

The trial court, at the close of all the evidence, sustained a motion for a directed verdict in favor of the defendant. In doing so, the court stated that the proof shows that plaintiff is totally and permanently disabled as a result of the accident received at the Bemberg plant, or at least that the proof was sufficient to go to the jury on these questions, and stated that he sustained the motion on the sole ground of misrepresentations in the application, which representations the court thought materially affected and increased the risk of loss. When asked what particular representations the court thought increased the risk, the court said the misrepresentations with reference to hernia, rheumatism, not having any local or constitutional disease within five years, and the statement that the applicant was sound physically.

It will be recalled that the application disclosed an operation for hernia in 1903.

The Court of Appeals affirmed the trial court. The affirmance is based solely on the ground of judicial estoppel. The only question to be determined is whether, by reason of certain affidavits which plaintiff made and filed with the United States Pension Bureau, in which plaintiff represented that he suffered from certain disabilities, he is now estopped to assert otherwise, and cannot be permitted to show the facts to be contrary to those stated in his affidavits made in an effort to secure an increase in his pension.

The plaintiff was formerly a soldier in the United States Army; he enlisted in 1903, went to the Philippine Islands, and was discharged in 1906. Following his discharge, he was allowed a small pension for right hernia and malarial fever, and since the allowance of such pension he has made repeated efforts to get an increase of his allowance.

On July 28, 1906, Helfer made an affidavit that he had not recovered from the hernia operation in 1903, and was compelled to wear a truss, and that he had not recovered from the malarial fever, but still...