Massachusetts Mut. Life Ins. Co. v. Crenshaw

• Citation: 186 Ala. 460,65 So. 65
• Decision Date: 12 February 1914
• Docket Number: 877
• Parties: MASSACHUSETTS MUT. LIFE INS. CO. v. CRENSHAW.
• Court: Supreme Court of Alabama

65 So. 65

186 Ala. 460

MASSACHUSETTS MUT. LIFE INS. CO. v. CRENSHAW.

No. 877

Supreme Court of Alabama

February 12, 1914

Rehearing Denied April 16, 1914

Appeal from Circuit Court, Etowah County; James E. Blackwood, Judge.

Action by Berdie M. Crenshaw against the Massachusetts Mutual Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The complaint was in Code form for action on an insurance policy. The following are the pleas referred to: (E) Prior to the issue of the policies sued upon herein, insured applied in writing to this defendant, and which application was made on December 17, 1911, duly subscribed by the insured for the issue to him of the policies sued on. That the questions propounded to the insured and his answers thereto contained in said written application forms a part of the contract sued upon, and are set forth therein. That in and by said written application insured declared in answer to the following questions: Have you had any of the following complaints diseases or symptoms (here follows a list of nearly all of the diseases). A. None. Q. What injuries or diseases have you had during the last ten years? A. Acute tonsilitis, 1910. Q State the character, severity, dates and duration. A. Completely recovered in two weeks. Defendant avers at the time the insured made the foregoing answers to the foregoing questions he knew they were false, in this, that, at the time of the making of said answers to said questions, the insured was afflicted with a tumor of the brain, which caused him to suffer from severe headaches and vertigo, and defendant avers it to be a fact that insured was at the time of making said answers afflicted as aforesaid, and suffered as stated, and avers said insured made such false representations with the actual intent to deceive defendant, that said representations did deceive defendant, and it acted upon them, and, induced thereby, issued the policy sued upon herein. Wherefore defendant says plaintiff ought not to recover in this action. (I) Prior to the issue and delivery of the policy here sued on, on, to wit, December 17, 1911, the insured, John W Crenshaw, applied in writing to this defendant for the issue to him of said policy of insurance. That in said application in the questions and answers therein contained, the insured declared and represented to defendant that he was to the best of his knowledge and belief in sound health, and a fit subject for life insurance, that he had not been sick during the ten years next before that date, except with acute tonsilitis, lasting about ten days, from which he had completely recovered, and further represented, in answer to said question, that he had not suffered from vertigo or severe headaches; and it was further agreed by and between the insured and insurer, and as set forth in said written application, that the policy applied for should not become effective until the payment of the first premium and the delivery of the policy to insured or his agent and at a time when insured was in as good health as when aforesaid application was made. Defendant avers that insured knew full well, at the time he made the representation, he was not in sound health, and to the best of his knowledge and belief a fit subject for life insurance; that his health was not sound; that he was not in good health, nor a fit subject for life insurance; but knew that for a long time next before said date of said application that he had suffered from vertigo, and severe headaches; that prior to the delivery of the policy he had been seriously ill and required the services of a physician; and defendant says that insured made the aforesaid false representations with the actual intent to defraud this defendant, and induce it to issue and deliver to him the policies of insurance sued on. Wherefore he ought not to recover in this action. (L) This plea sets up the agreement that the policy should not be enforced until delivered to the insured, the payment of the first premium and the receipt as to the condition of health of the insured, as set out in the opinion, and alleges that plaintiff breached his said contract, in that he was on the day of making said certificate under the care and treatment of a physician, suffered from severe headaches and extreme nervousness, and continued to receive the services of a physician for some time thereafter. That insurer declined to deliver said policy, and only delivered and entered into said contract after the making and issuing of the receipt as set out above. (O) is a short rendering of plea E, above set out.

W.J. Boykin, of Gadsden, for appellant.

Goodhue & Brindley, of Gadsden, for appellee.

McCLELLAN J.

Action, by appellee against appellant, upon two life insurance policies, issued upon the life of John W. Crenshaw, in which the appellee was the beneficiary. The policies are identical except in respect of the sum assured and the amount of the premium exacted therefor.

The following clause appears in the policies sued on: "This policy and the application herefor constitute the entire contract between the parties. All statements made by the applicant shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall be used in defense to a claim under this policy unless it is contained in the application and a copy of the application is hereto annexed."

In the said application, signed by the insured, this clause appears: "I agree that the insurance hereby applied for shall not be in force until the acceptance and approval of this application by the company at its home office, the delivery of the policy to me or my agent, and the payment of the first premium as required therein during my present condition of health; and that upon such delivery said policy shall be considered as having become effective upon the date stipulated in the policy as the date on which the insurance begins." In said application, the applicant answered question 19 in the negative. The question (19) will be set out in the report of the appeal. Question 20, with its answers, was this: "What injuries or diseases have you had in the last ten years? 'Acute tonsilitis.' State their character, severity, dates and duration. 'Completely recovered in two weeks.' " Concluding the application, this clause appears: "I hereby declare, on behalf of myself and of any person who shall have any interest in any policy issued upon this application, that, to the best of my knowledge and belief, each of the foregoing answers in parts 1 and 11 of this application is full, complete, and true, and that I am in sound physical condition, and a proper subject for life insurance."

The application was made December 17, 1911. The policies date (to be in force after) December 20, 1911. They were delivered February 3, 1912. On that date, at the time of delivery Crenshaw signed and delivered to the insurer's agent, who had the policies for delivery, the following certificate: "Massachusetts Mutual Insurance Company, Montgomery, Alabama, Feb. 3, 1912. I hereby certify that there has been no change in my family record since my application for policy No. 293071 was made, that I am now in good health, have had no sickness, and have not required nor...