Life & Cas. Ins. Co. v. Jett

• Decision Date: 08 December 1939
• Parties: LIFE & CASUALTY INS. CO. v. JETT.
• Court: Tennessee Supreme Court

133 S.W.2d 997

175 Tenn. 295

LIFE & CASUALTY INS. CO. v. JETT.

Supreme Court of Tennessee.

December 8, 1939

Certiorari to Court of Appeals.

Action by Leatha Jett against the Life & Casualty Insurance Company upon a life insurance policy. To review a judgment of the Court of Appeals affirming a judgment for plaintiff defendant brings certiorari.

Petition for certiorari denied.

Jac Chambliss and Sizer, Chambliss & Kefauver, all of Chattanooga, for plaintiff in error.

J. F Wheless, of Chattanooga, for defendant in error.

GREEN Chief Justice.

This is a suit upon a life insurance policy by the beneficiary thereof. There was a judgment for the plaintiff below affirmed by the Court of Appeals, and the defendant has filed a petition for certiorari.

On May 29, 1929, defendant Insurance Company issued a policy on the life of Oscar Jett, Jr., aged seven years, his mother, plaintiff Leatha Jett, being named as beneficiary. On January 15, 1932, a physician was called to see the child, the latter being ill, and the doctor diagnosed his case as tuberculosis of the left hip joint. After treatment for some eleven months, an operation was performed upon the boy, a portion of a bone from the pelvis being grafted across the hip joint. Prior to the operation, the health of the patient had been built up by proper treatment. Following the operation, a plaster cast was employed until April, 1933, then removed, and a brace used. The use of the brace was gradually discontinued and discarded in January, 1934.

The doctor continued to visit the boy at intervals until September, 1934, and on that date examined the patient and formed the opinion that the tubercular condition was arrested and apparently dismissed the patient.

Before and after September, 1934, and until May 19, 1935, the boy appeared to be in good health, played ball, marbles, and different games with the other children, the only observable effect of his previous trouble being a limp, due to the shortening of his leg by the operation mentioned. On the date last mentioned, May 19, 1935, the child fell sick, a doctor was called in, and his case diagnosed as tubercular meningitis. He was taken to the hospital on May 26, 1935, and died on June 4 following.

This is the second appeal of this case. On the first trial the circuit judge directed a verdict for the defendant. The Court of Appeals reversed this judgment and remanded the case for a new trial. 21 Tenn.App. 266, 109 S.W.2d 104. This court denied a petition for certiorari. On the second trial, in conformity with the opinion of the Court of Appeals, the case was submitted to the jury and there was, as stated, a verdict and judgment for the plaintiff below for the amount of the policy.

In February, 1935, the policy herein was permitted to lapse for nonpayment of premiums, but in April, 1935, a month or so before the boy's fatal attack, premiums were paid and it was reinstated.

The defendant Insurance Company relies on two provisions of the policy issued to defeat recovery:

"If a policy lapse for nonpayment of premiums, it may be reinstated upon application of insured made within one year from the date to which premiums have been duly paid and payment of all arrears, provided evidence of the insurability of the insured satisfactory to the Company be furnished, but such reinstatement shall not take effect, unless at the date thereof the insured is living and is in sound health.

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"Within two years from the date of issuance of this policy, the liability of the Company under same shall be limited under the following conditions, to the return of the premium paid thereon:

"If the insured before its date has been rejected for insurance by this or any other company, order or association, or has been attended by a physician for any serious disease or complaint; or has had before its date any pulmonary disease or chronic bronchitis or cancer, or disease of the heart, liver or kidneys."

It is insisted for the defendant that the insured was not in sound health at the time this policy was reinstated and that sound health at the time the policy was reinstated was a condition of defendant's liability.

Whether or not insured was in sound health at the time this policy was reinstated is...