Life & Casualty Ins. Co. v. King

• Decision Date: 02 June 1917
• Citation: 195 S.W. 585
• Parties: LIFE & CASUALTY INS. CO. v. KING.
• Court: Tennessee Supreme Court

195 S.W. 585

LIFE & CASUALTY INS. CO. v. KING.

Supreme Court of Tennessee.

June 2, 1917.

Certiorari to Court of Civil Appeals.

Action by Tankie King against the Life & Casualty Insurance Company. A judgment for plaintiff was reversed by the Court of Civil Appeals, and the cause remanded for new trial, and both parties petition for writs of certiorari. Suit dismissed.

Barton & Barton, of Memphis, for plaintiff in error. Jos. Norville, of Memphis, for defendant in error.

NEIL, C. J.

On the 23d of March, 1914, the plaintiff issued to Walter King a policy providing for a weekly premium of 25 cents, a maximum weekly allowance for sickness or accident of $5, and the amount of $70 payable in the event of his death. He died on February 25, 1915, and the present action was shortly thereafter brought to recover the $70.

Both sides moved for peremptory instructions, and the trial court overruled that of the plaintiff in error, and granted that of the defendant in error, the wife of the deceased, to whom the policy was payable in case of death. The case was then appealed to the Court of Civil Appeals, where the judgment was reversed, and the cause remanded for new trial. Both sides have brought the case to this court on petitions for writs of certiorari.

The application for the policy was taken by the company's agent C. G. Floyd, and the answers reduced to writing by him. In this paper King made reply to the following questions, as now stated:

"Are you in good health? A. Yes. Q. When last sick? A. January, 1914. Q. Of what disease? A. Indigestion. Q. Name and address of attending physician? A. Dr. Beecham. Q. Did any insurance company ever decline your application? A. No."

There was appended to this application the following statement, signed by Walter King:

"I do hereby declare that the foregoing answers are strictly correct and truthful, in which there is no suppression of any facts; and I acknowledge and agree that this statement shall form the basis of the agreement with the company, and if any misrepresentation or fraudulent, or untrue answers have been made, or any omission or neglect to pay any premiums, on or before the day on which they shall fall due, shall take place, that then this agreement shall become null and void, and I shall not be entitled to any benefits or privileges under said agreement, and all moneys which shall have been paid shall be forfeited to the said company for its sole use and benefit; and I do further agree that if any policy shall be issued, to conform to its requirements."

The policy also contained the following stipulation:

"If the representations of the application on which this policy is granted be not true, or if the conditions of this policy be not in all respects observed, or if any erasure or alteration shall be made in this policy except by indorsements signed by the proper officers, this policy shall thereupon become void; and whenever for any cause this policy shall terminate or become void, all premiums previously paid shall be forfeited to the company unless otherwise provided herein."

On the back of the policy the following conditions appear:

"(4) The applicant must be alive and in sound health when this policy is delivered, and no liability is assumed by the company prior to the date hereof, nor unless on said date and delivery of this policy the first payment has been legally made. * * *

"(6) No benefits will be paid for sickness or death resulting, directly or indirectly, from diseases contracted or injuries received before the delivery of this policy; nor will any benefits be paid for sickness or death resulting, directly or indirectly, from intemperance, immorality, or venereal diseases."

It was agreed at the bar of the court that the record showed that the deceased died of "Hodgkin's disease." This is shown to be a disease of the glands of the body, that it is slow in its progress, but almost uniformly fatal. The evidence shows that the insured had been afflicted with this disease for two years prior to his death. Dr. Beecham treated him in February, 1914, and it was giving him a good deal of trouble at that time. This was just about one month prior to the time he made his application, and less than two months from the date the policy was issued. Prior to this time, and during the year 1913, he had been operated on at the city hospital for a swelling in his neck caused by this disease. Dr. Beecham told him, in February, 1914, that he considered that his trouble was "Hodgkin's disease." At the time his application was taken by Mr. Floyd, the company's agent, there was what is called in the record "a knot on the side of his neck," which was observable. The agent's attention was attracted to it, and he asked Walter King about it. According to the agent's testimony King said that it gave him no trouble; but the agent reported to his company, at the foot of the application, in response to a printed question whether the applicant had any physical or mental defect, that there was a small wen on his neck. The disease which he had did not interfere with his work until some five or six weeks before his death, as he continued to work at a sawmill up to the time he was taken down and was sent to the hospital. He continued at his usual work, after he recovered from the operation for the "knot on his neck" in 1913, up to the time he was sent to the hospital in 1915.

On the second examination of Tankie King, the defendant in error, she testified that the application was taken on Sunday morning, at the home of the insured; that the "knot on the neck" of the insured was spoken about in the presence of the agent; that the agent had been urging the insured to take the policy for two or three months; that the insured said none of the companies "seemed to want to take him on account of the knot on his neck"; that the insured asked the agent if he had a doctor to examine his patients, and the latter replied that his company did not have doctors any longer, and added: "If your neck happens to bother you, let us know and we will have a doctor to you to examine it."

The witness Floyd testified that no one was present at the time the application was taken but the insured and himself; that it was not at the home of the insured but at the mill where he was working; that nothing was said about his having been in the hospital; that he saw no scar on the neck of the insured, and he had no scar; that the insured told him nothing about having been treated for "Hodgkin's disease."

This disease is more particularly described than has already been stated by one of the medical witnesses as follows:

"It is an enlargement of all the glands of the body through progressive anemia. Usually the disease continues some time before it produces death, but occasionally there are very acute cases in which persons die in two or three months. It is like tuberculosis; some die right away and some live eight or ten years. A man might suffer with this disease without knowing that he was afflicted with a fatal disease. He would not necessarily have to be in bed, but would be going around yet ailing. It usually grows in intensity, but it is variable in all cases. The disease usually comes by swelling. The disease usually comes, first, you notice a little enlargement of the glands of the neck. It can be localized in any gland of the body — swelling of the glands. It wouldn't be very much for three or four years; just stay in these glands; then gradually go down; in back of this bone — the inguinal glands would enlarge and affect the lymphatic system. Then there can be an acute type through all the glands being enlarged at the same time, and then it might be what you call localized and stay in one region a long time before it spreads to the rest of them."

The medical witness further testified that from the time the first symptoms would manifest themselves up to the time of death the patient would not ordinarily be disabled; that a man suffering from the disease, however, would know that he had a chronic disease of some description, from the first symptom, that is the enlargement of the gland. The witness then corrected himself by saying that the patient might not know that the disease was chronic; that all he would know was that the gland was enlarged, but would not know that it would remain; that some people might not even know that it was abnormal; that this would depend on the intelligence of the patient. The witness testified that, from the symptoms the insured exhibited when he came to the hospital shortly before his death, he had been affected with the disease for about two years.

The agent who took the application was not only a soliciting agent, but also cashier of the company.

The trial judge ruled that the application was no part of the contract of insurance, and declined to enforce it. He also declined to enforce so much of section 4 as required that the insured should be in sound health on delivery of the policy, on the ground that this clause was too indefinite, and also because the agent who took the application saw the knot on the neck of the insured. He also declined to enforce section 6 because it was unreasonable so far as it applied, directly or indirectly, to diseases contracted or injuries received before the delivery of the policy. He thereupon, as already stated, peremptorily instructed the jury in favor of the defendant in error here, plaintiff below.

We are of the opinion that the trial judge and the Court of Civil Appeals erred in holding that the application was not a part of the policy. It is urged in support of the conclusion reached in the lower courts that chapter 441 of the Acts of 1907 necessitates such a result. That act provides:

"That every policy of insurance issued to or for the benefit of any citizen or resident of this state on or after the first day of July, 1907, by any insurance company or association doing business in this state, except fraternal...