National Annuity Association v. McCall

• Decision Date: 08 April 1912
• Parties: NATIONAL ANNUITY ASSOCIATION v. MCCALL
• Court: Arkansas Supreme Court

146 S.W. 125

103 Ark. 201

NATIONAL ANNUITY ASSOCIATION v. MCCALL

Supreme Court of Arkansas

April 8, 1912

Appeal from Lawrence Circuit Court, Eastern District; R. E. Jeffery Judge; reversed.

Judgment reversed, and case remanded.

David C. Finley and Smith & Blackford, for appellant.

1. The compromise and settlement, and release executed by appellee is a bar to this action. 75 Ark. 354; 62 Ark. 342; 43 Conn 455. If appellee's complaint is sufficient to state a case of fraud, which is not conceded, the testimony fails to meet the burden imposed upon her to prove the allegations of fraud, or to overcome the rule that fraud will not be presumed. 77 Ark. 351; 92 Ark. 509; Id. 378; 5 Ark. 345; 18 Ark. 123; 20 Cyc. 108 (J); Id. 32 (5); 16 Cyc. 937; 32 Ark. 338; 130 Wis. 485; 128 S.W. 859.

2. The fact that the insured died of a chronic disease within twelve months from the date of the certificate voided his certificate. Appellee waived the right to object to appellant's offered proof that insured died of consumption, as being privileged communications, by the allegations of her complaint. Wigmore on Ev., § 2389.

W. E. Beloate, for appellee.

1. The question of fraud was one of fact to be submitted to the jury under proper instructions. The jury were, by the instructions, required to find this fact, before they could find for the plaintiff, and the evidence is sufficient to sustain the verdict. 83 Ark. 580.

2. There is no evidence showing the falsity of any statement made by McCall in his examination, no testimony that the application was the one made out by him, or that he ever saw it, or that the signature thereto was his signature, or that he had chronic consumption.

3. The evidence of Doctors Pringle and Thomas was not admissible. 136 S.W. 651. If McCall made false statements about his condition and the medical examiner could by examination or looking at the man know that he had consumption or other disease that would unfit him for life insurance, appellant is bound by this knowledge. 71 Ark. 297; 81 Ark. 206.

OPINION

FRAUENTHAL, J.

This is an action brought by appellee to recover upon a certificate of insurance issued by appellant upon the life of her husband. In the complaint it is alleged that appellant is a fraternal benefit association, and had issued the certificate on February 26, 1909, by which it promised to pay to her as beneficiary the sum of $ 1,500 on the death of her husband, and that her husband had died on February 22, 1910, a member in good standing of said association. It was further alleged that a short time after her husband's death the appellant by false and fraudulent representations induced her to accept the sum of $ 138.45 in settlement of said insurance, and to execute a release therefor. She asked that appellant be credited with the said payment, and sought judgment for the balance of the amount named in the certificate.

The appellant admitted the execution of said certificate, but alleged that it was payable in annual installments of $ 150 each. It resisted recovery on the grounds (1) that the insured had executed a written application for the insurance wherein he had made certain false statements relative to his health, the truth of which was expressly warranted by him therein; (2) that, according to the by-laws of the association, which were a part of the insurance contract, it was provided that, should a member die as a result of a chronic disease within twelve months from the date of said certificate, the contract of insurance should become null and void; and it alleged that the insured had died within said twelve months from consumption, which is a chronic disease. It also alleged that, by way of compromise, it had paid to appellee $ 138.45 in full settlement of her claim, and obtained from her a release of the association from all further liability; it denied that she was induced to settle the claim or execute the release by reason of any false or fraudulent representation. The trial resulted in a verdict in favor of appellee.

The appellant assigns a number of grounds why the judgment should be reversed, amongst which are the alleged errors committed by the lower court in its refusal to admit certain testimony and in its rulings upon certain instructions given and refused.

In its answer, the appellant referred to and attached thereto as an exhibit a written application, which it alleged had been signed by the insured, and was the basis of the issuance of the certificate. In this alleged application, certain questions were propounded to and answered by the insured relative to his health, the truth of which was warranted by him therein. Amongst these was one asking whether he had ever had consumption, to which the answer was, "No." Upon the trial of the case, however, this alleged application was never offered or introduced in evidence, and does not appear in the bill of exceptions. The falsity of the alleged warranted answers of the insured was a matter of defense, which was pleaded in the answer; and to put same in issue it was not incumbent upon appellee to deny that said answers in the alleged application had been made by the insured, or to deny their falsity if so made. A reply is not provided for by our code of pleading except where allegations of a counterclaim or set-off are made in the answer. Kirby's Digest, § 6108. It devolved upon appellant, therefore, to prove the execution of the application by the insured, and that he had made the answers therein set out, as well as their falsity. The exhibit to the answer of the alleged application was no proof thereof. The application, after proof of its execution, should have been introduced in evidence upon the trial of the case and made a part of the bill of exceptions, in order for it to be considered upon appeal.

The appellant introduced in evidence certain by-laws of the association, amongst which was one providing that "should a member die or become permanently and totally disabled as a result of an hereditary or chronic disease within twelve months from the date of his or her certificate, * * * then and in such case his or her beneficiary certificate shall become null and void and of no effect, and no person shall be entitled to receive any benefits thereunder, and all liability of this association shall cease." The appellant introduced evidence tending to show that consumption was such a chronic disease, and that the insured had died within twelve months from the date of the issuance of the benefit certificate. Thereupon, the appellant offered in evidence the written death claim alleged to have been made and signed by the appellee, and written proofs of death made by two physicians, which it claimed were furnished to it in pursuance of one of its by-laws, and that in said documents it was stated that the insured had died from consumption. But the court refused to permit the introduction of said documents. In the bill of exceptions it appears that two physicians were introduced as witnesses, and upon their examination they stated that they had signed these proofs of death, and the court refused to permit same to be introduced in evidence. Whereupon the bill of exceptions proceeds to recite that counsel for the appellant offered same in evidence, and asked that they be marked Exhibits B and C, respectively. Counsel also offered to introduce in evidence said death claim, and, the request being refused, they asked that it be marked Exhibit A. But said proofs of death and said death claim are not copied in the bill of exceptions, and no direction therein is made to the clerk to copy and incorporate them therein. There are attached to the transcript what purport to be copies of these documents; but they are not signed nor certified to by any official. The bill of exceptions, over the signed certificate of the trial judge, "must contain or in some manner call for and specifically identify the evidence that was introduced," and also state that it was offered and refused, in order to authorize this court to consider it. In order to make a paper or document which has been introduced or offered in evidence a part of the bill of exceptions, it should be copied or incorporated in the body of the bill at the time it is signed by the trial judge. If this is not done, then at the time the bill is signed it must be identified therein by number, mark or other means and with the direction in the bill that it be copied therein. St. Louis, I. M. & S. Ry. Co. v. Godby, 45 Ark. 485; Lesser v. Banks, 46 Ark. 482; Dozier v. Grayson-McLeod...