Lincoln Income Life Ins. Co. v. Milton

• Decision Date: 13 March 1967
• Docket Number: No. 5--4153,5--4153
• Citation: 242 Ark. 124,412 S.W.2d 291
• Parties: LINCOLN INCOME LIFE INSURANCE COMPANY, Appellant, v. Callie M. MILTON, Appellee.
• Court: Arkansas Supreme Court

Page 291

412 S.W.2d 291

242 Ark. 124

LINCOLN INCOME LIFE INSURANCE COMPANY, Appellant, v. Callie M. MILTON, Appellee.

No. 5--4153.

Supreme Court of Arkansas.

March 13, 1967.

Crumpler, O'Connor, Wynne & Mays, Richard H. Mays, El Dorado, for appellant.

Jabe Hoggard, El Dorado, for appellee.

GEORGE ROSE SMITH, Justice.

This is an action brought by the appellee to recover $125 under a sickness and accident policy. The insurance company contends that the insured's condition existed before the policy was issued and was therefore excluded from coverage by this clause in the contract: "Sickness' as used in this policy means sickness or disease which first commences or first becomes evident, after the effective date hereof and which causes loss commencing while this policy is in force.' The trial court, hearing the case without a jury, entered judgment for the plaintiff, finding that she did not know the cause of her physical disorder when she applied for the policy.

There is no real dispute about the material facts. The policy was issued on July 19, 1965, without a medical examination. Mrs. Milton was the 36 years old. In applying for the policy she informed the soliciting agent that she was in good health as far as she knew.

In November, after the issuance of the policy in July, the insured consulted the late Dr. B. L. Moore, Sr., who was practicing medicine with his son. Dr. Moore's records, as explained by his son at the trial, disclosed that the chief complaint was 'that she feels bad. The first notation is that her last menstrual period was September, 1964.' A vaginal examination and urinalysis were negative. Dr. Moore placed his patient in the hospital for five days, apparently for tests and x-rays. That period of hospitalization resulted in the present claim.

It was found that Mrs. Milton's thyroid gland was underactive, producing insufficient hormones to regulate the bodily functions controlled by the thyroid gland--including the ovarian functions that give rise to menstruation. Dr. Moore prescribed thyroid pills. With that medication the patient's menstrual periods began again in December and were found to have continued normally when she was examined some seven months later by Dr. Moore, Jr.

Among the cases discussed by counsel these two bear most directly upon the issues now presented: State Nat. Life Ins. Co. v. Stamper, 228 Ark. 1128, 312 S.W.2d 441 (1958), and American Ins. Co. of Texas v. Neal, 234 Ark. 784, 354 S.W.2d 741 (1962). Each case affirmed a judgment for the plaintiff. In the Stamper case the insured, during most of her life, had had a small bony growth on the back of her head. It caused no trouble until more than a year after the issuance of the policy sued upon. The growth then increased in size and gave rise to the hospital and medical expenses incurred by the plaintiff. In sustaining the trial court's judgment for the insured we said that 'the weight of authority is that the sickness should be deemed to have had its inception at the time it first manifested itself or became active, or when sufficient symptoms existed to allow a reasonably accurate diagnosis of the case, so that recovery can be had, even though the disease, germs or infection was present in the body prior to the excluded time, if the condition was latent, inactive, and perhaps not discovered.' That case was followed, on similar facts, in the Neal case, supra. See also Old Equity Life Ins. Co. v. Crumby, 241 Ark. 982, 411 S.W.2d 292 (1967).

In those cases, and in many others to the same effect, the insured had some supposedly trivial infirmity or abnormality...