Massachusetts Protective Ass'n v. Kittles

• Decision Date: 31 October 1924
• Docket Number: No. 4277.,4277.
• Parties: MASSACHUSETTS PROTECTIVE ASS'N, Inc., v. KITTLES.
• Court: U.S. Court of Appeals — Fifth Circuit

2 F.2d 211 (1924)

MASSACHUSETTS PROTECTIVE ASS'N, Inc., v. KITTLES.

No. 4277.

Circuit Court of Appeals, Fifth Circuit.

October 31, 1924.

A. A. Lawrence and E. H. Abrahams, both of Savannah, Ga. (F. H. Nash, of Boston, Mass., and A. A. Lawrence and E. H. Abrahams, both of Savannah, Ga., on the brief), for appellant.

A. B. Lovett, of Savannah, Ga. (H. S. White, of Sylvania, Ga., and A. B. Lovett and Hitch, Denmark & Lovett, all of Savannah, Ga., on the brief), for appellee.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER, Circuit Judge.

Averments of the bill in equity filed in the court below in September, 1923, by the appellant, a Massachusetts corporation, against the appellee, a citizen of Georgia, showed the following:

On May 16, 1921, appellant issued its health and accident policy to the appellee, pursuant to an application made by the latter, the application providing that the policy issued thereon should be based upon questions and answers therein. The appellee, by his answers to questions in the application, represented that he never had an application for accident, health, or life insurance declined, and that he was in sound health and bodily condition when he made the application and answered the questions contained therein. The policy provided that the principal sum under it is $5,000, and clause A thereof provided for the payment of $50 per week in case of total disability of the insured from accident or disease. The policy contained the following provision:

"If total disability resulting from disease and arising thereunder prior to the insured's sixtieth birthday continues beyond the sixty weeks described in clause 1 of the attached policy, the weekly indemnity provided for by clause A of said policy shall continue to be payable to the insured so long as he thereafter lives and is continuously totally disabled and necessarily confined within the house under the care of a licensed physician."

In August, 1922, appellee made a claim for total disability resulting from disease beginning in that month. Based on that claim, appellant made payments aggregating $1,400. Shortly after making the last of such payments appellant learned that appellee's disability was caused by a disease which originated prior to the date of the policy, that appellee was not in sound health when he made said application, and that a previous application by him for life insurance had been declined. Promptly after such discovery appellant tendered to appellee the entire amount paid by him in premiums, with interest thereon, and demanded the return of the policy for cancellation, and the repayment of the $1,400, with interest. The concluding words of the policy, omitting signatures, were the following:

"In witness whereof, the Massachusetts Protective Association, Incorporated, has caused this policy to be signed by its president and secretary and its seal to be hereto attached, this sixteenth day of May, one thousand nine hundred and twenty-one, at twelve o'clock noon."

The court sustained appellee's motion to dismiss the bill on the following grounds. (1) There is no equity in said bill. (2) It affirmatively appears from the averments in the bill that a plain, adequate, and complete remedy may be had at law by the complainant. (3...