Isom v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 23 May 1939
• Citation: 138 Fla. 260,189 So. 253
• Parties: ISOM et al. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Florida Supreme Court

189 So. 253

138 Fla. 260

ISOM et al. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

Florida Supreme Court, Division A.

May 23, 1939

Suit by the Equitable Life Assurance Society of the United States against John A. Isom and another, for cancellation of disability and double indemnity provisions in life policy and other relief. From a decree for complainant, defendants appeal.

Affirmed. Appeal from Circuit Court, Columbia County; R H. Rowe, judge.

COUNSEL

Davis &amp Davis, of Madison, for appellants.

Adair Cooper, Osborne & Copp, H. P. Osborne, and J. Henson Markham, all of Jacksonville, for appellee.

OPINION

BUFORD Justice.

Appeal brings for review final decree in favor of complainant in the Circuit Court, appellee here, in a suit in Chancery wherein complainant sought:

'1. That this Honorable Court take and retain jurisdiction of this cause and of the matters and things herein alleged and of the parties hereto and administer complete relief herein between the parties hereto.

'2. That this Court temporarily restrain and enjoin said defendant John A. Isom from prosecuting or maintaining any further that certain cause brought by said defendant John A. Isom against said plaintiff and now pending in the Circuit Court in and for Columbia County, Florida, and from instituting or causing to be instituted any action at law or any suit in equity in any state or other court to collect any sums claimed to be due as disability benefits under said policy of insurance, and that upon final hearing in this cause, such injunction be made permanent.

'3. That the total and permanent disability provisions and the provisions for double indemnity in case of death by accident contained in said policy No. 4,843,137 be declared and decreed to be and to have been at all times null, void and of no effect, and that said total and permanent disability and double indemnity provisions contained in said policy be rescinded, cancelled and set aside, and the same declared to have been and to be duly rescinded, cancelled and set aside and that said policy of insurance be reformed in such manner and to such an extent as to strike out, cancel and eliminate therefrom the said total and permanent disability and double indemnity provisions thereof as aforesaid.

'4. That said defendant John A. Isom be ordered and decreed to pay to the plaintiff the sum of Fifty ($50.00) Dollars heretofore allowed and paid to him by the plaintiff for disability benefits, together with interest thereon from the date such sum was paid.

'5. That the plaintiff may have such other and further or other or further relief in the premises as equity and good conscience may require and to your Honors may seem meet and proper.'

The bill of complaint alleged in effect:

That on August 28, 1928, defendant, John A. Isom, applied to the plaintiff for the issuance of an insurance policy upon his life, which policy should contain provisions relating to disability and double indemnity. That plaintiff was then, and has continued to be, engaged in the business of writing policies of insurance, insuring the lives of such individuals as applied therefor and who were, after examination, accepted by the plaintiff. That the application of Isom was in writing and consisted of parts One and Two.

'That in and by Part 1 of said application dated August 28th, 1928, defendant John A. Isom agreed that the policy issued thereon should not take effect until the first premium therefor had been paid during his good health and that all the answers contained in said application, and all those made to the plaintiff's medical examiner, which are contained in Part II of said application were true and were offered to the plaintiff as an inducement to plaintiff to issue the policy for which application was thereby made;

'That on, to-wit: August 28, 1928, said defendant John A. Isom appeared before a medical examiner of the plaintiff and answered certain questions relative to his physical condition and past medical history. Such questions and answers were and are contained in Part II of said application under the caption 'Statements to Medical Examiner'. That among the questions or statements propounded to said defendant John A. Isom and the answers or statements then and there so made by him to said examiner and contained in said Part II of said application were the following:

"3. Have you, on account of your health, ever left your work for more than one month or changed your occupation or dwelling, or traveled? (Details and dated.)' to which said John A. Isom answered 'No."

"6. A. State every physician or practitioner whom you have consulted or who has treated you during the past five years. (If none, so state).' to which said John A. Isom answered:

Name and address of each Date and details Result

------------------------ ---------------- ------

L. J. Arnold, Lake City, Feb. 1925. Treated Recovery

Fla. for Bronchial Asthma No attack in 2 years.

"7. Have you ever had or been treated for any disease or disturbance of (answer each separately):

"A. The Brain or Nerves' To which said John A. Isom answered 'No.'

"B. The Rectum (Hemorrhoids or Piles)' To which said John A. Isom answered 'No.'

"8. A. Have you ever had gout, rheumatism, tuberculosis, epilepsy, diabetes or syphilis?' To which said John A. Isom answered 'No.'

"F. Have you had any other illness or injury not mentioned above?' To which said John A. Isom answered 'No.'

"9.

"C. Have you ever taken treatment for the alcoholic or drug habit or been a patient in an institution or hospital?' To which said John A. Isom answered: 'No, except for operation as stated in 8D and 6A'. (Such statement in said 8D was that said John A. Isom had a surgical operation for removal of his appendix in 1922 after one attack and with complete recovery.)'

That the answers, statements and representations contained in the application, and each of them was material to the risk against which the defendant Isom was then and there applying to the plaintiff for insurance policy containing provisions relating to disability and double indemnity and benefits of each of them was material to the subject matter of such insurance and that each of them was made by Isom to the plaintiff for the purpose of inducing the plaintiff to enter into and issue such a contract of insurance.

That plaintiff, relying upon the statements and representations so made by the defendant Isom, issued and delivered to the said Isom on about September 7th, 1928, its policy of insurance numbered 4,843,137, and included in such contract or policy of insurance special agreements or provisions relating to total and permanent disability and double indemnity for death by accident. Said contract or policy of insurance was accepted by the defendant, Isom.

That the written application of Isom containing said statements and representations, supra, was, by the terms of the policy, made a part of the contract of insurance and a copy of such written application was attached to the policy and made a part thereof.

'That it was provided in and by said policy of insurance No. 4,843,137, as follows, to-wit:

"Incontestability and Freedom of Travel, Residence and Occupation.

"This policy, except as to the provisions relating to Disability and Double Indemnity, shall be (a) incontestable after it has been in force during the lifetime of the insured for a period of one year from its date of issue, provided premiums have been duly paid, and (b) free from restrictions on travel, residence, occupation or military or naval service.'

'VI. That said policy or contract of insurance on the life of said John A. Isom was, in and by its provisions, made payable to the insured's brother, F. H. Isom, one of the defendants herein, as beneficiary, with the right of the insured to change the beneficiary or assign said policy. That said insured has not changed said beneficiary or assigned said policy. That the plaintiff is informed and believes and upon such information and belief alleges that such policy, designating the beneficiary as aforesaid, is now in the hands of the defendant, John A. Isom.

'VII. That such statements and representations by the defendant John A. Isom as set forth in paragraph 1 of this bill of complaint and relied upon by the plaintiff as aforesaid were, and each of them was, not true in fact, and were, and each of them was, materially and essentially untrue, among other things, in that said John A. Isom did, prior to making application to the plaintiff as aforesaid, leave his work for more than one month, and change his occupation and dwelling and travel, each and every, on account of his health; and in that said John A. Isom had consulted several physicians and had been treated by several physicians and practitioners during the five years prior to August 28th, 1928, other than Dr. L. J. Arnold, mentioned as the only physician whom the insured had consulted or who had treated the insured in such period of five years and in that said John A. Isom had been treated, among other diseases or disturbances, for the brain and the nerves and rectum; and in that he had had or suffered from rheumatism and tuberculosis; and in that he had had numerous and sundry illnesses and diseases not mentioned or in any way suggested by his said written application; and in that he had been a patient in an institution or hospital for treatment, examination or observation other than for the removal of his appendix in 1922 and treatment for bronchial asthma in February, 1925; and in that said John A. Isom had suffered from attacks of bronchial asthma after his attack therefrom in February, 1925, and within two years of the date of his application; That such statements and representations...