National Annuity Association v. Carter

• Decision Date: 21 November 1910
• Citation: 132 S.W. 633,96 Ark. 495
• Parties: NATIONAL ANNUITY ASSOCIATION v. CARTER
• Court: Arkansas Supreme Court

132 S.W. 633

96 Ark. 495

NATIONAL ANNUITY ASSOCIATION v. CARTER

Supreme Court of Arkansas

November 21, 1910

Appeal from Lawrence Circuit Court, Eastern District; Charles Coffin, Judge; affirmed.

Judgment affirmed.

Smith & Blackford, for appellant.

1. The answers of deceased to questions propounded to him with reference to his habits as to drinking intoxicants being false, and knowingly and wilfully so, as appears by the proof, he thereby perpetrated a fraud, and the certificate issued to him and the assumption of risk by the insurer, were void ab initio, and this fraud was material to the risk. 58 Ark. 529, 532, 535, 540, 544 and cases there cited; 72 Ark 621, 623; 66 L. R. A. 322, 334. See also 37 Ark. 580; 52 Ark 517; 53 Ark. 381; 100 Mass. 472.

2. If appellant is liable at all for any amount, there should be deducted from the liability apparent upon the face of the certificate the difference between the amount of premium paid and the full amount of premiums that would have accrued and been paid for ten years had the insured lived, as provided by section 84, constitution and by-laws of appellant. 81 Ark 512.

W. A. Cunningham, for appellant; J. N. Beakley, of counsel.

1. In the benefit sued upon appears this statement, "The benefits herein shall be incontestable from this date." The constitution and by-laws of the Loyal Fraternal Home provides, section 20, "Certificate incontestable--Benefit certificates shall be incontestable from the time they are put in force, except for nonpayment of dues and assessments." 115 N.C. 393; 104 Ga. 256; 62 Minn. 39; 101 Tenn. 22; 42 L. R. A. 247; 29 Cyc. 198.

2. This court will give to the evidence supporting the contention of the appellee its strongest probative force; and if found to be legally sufficient to support the verdict, the verdict will be sustained. 89 Ark. 589; 76 Ark. 522.

3. This court will not reverse because of the giving of an abstract instruction unless the jury were misled or the appellant was prejudiced thereby. The jury are the judges of the weight and preponderance of the evidence. 22 Ark. 207; Id. 216; 37 Ark. 238; 49 Ark. 381; 85 Ark. 577; 37 Ark. 185; 50 Ark. 484; 51 Ark. 467.

OPINION

MCCULLOCH, C. J.

This is an action instituted by the beneficiaries to recover on a benefit certificate issued by the Loyal Fraternal Home, a corporation engaged in the life insurance business on the fraternal plan, to Antonio Frankring, one of its members, now deceased. The certificate is in the following form:

"This certifies that Antone Frankring is a member of the Loyal Fraternal Home Lodge No. 92, at Walnut Ridge, State of Arkansas, and within ninety days after receipt of satisfactory proofs of his death there shall be paid to one thousand dollars. The conditions, benefits and provisions printed or written by the society on the back hereof are a part of this certificate. The benefits herein shall be incontestable from this date. In witness whereof the Loyal Fraternal Home has caused its corporate seal to be hereunto affixed and these presents to be signed by its supreme president and its supreme secretary at Cameron, Mo., this the 25th day of September, 1907."

On December 27, 1907, defendant National Annuity Association, another corporation engaged in the same business, took over and assumed the obligations of the other association to its members by a writing in the following form:

"The National Annuity Association, a fraternal beneficiary association at Kansas City, Mo., hereby assumes the benefit certificate issued by the Loyal Fraternal Home, of Cameron, Mo., as above described, to which this certificate of assumption is attached, and by these presents makes it a certificate of the National Annuity Association, subject to the constitution and laws of the said National Annuity Association now in force or that may be hereafter adopted. Provided, however, the National Annuity Association agrees to pay the full benefit provided for in this certificate at death, less amounts previously paid for disability benefits and unpaid assessments, whether such benefit is provided for under its laws or not."

Frankring died January 7, 1909, and the action is against the National Annuity Association. No question is raised as to the authority of the defendant under its charter powers to take over the business or to assume the obligations of the other association. Defendant pleaded, among other defenses, that the assured, in order to procure the insurance, had knowingly made false answers to certain questions propounded in the application, for the purpose of deceiving and defrauding the insurer, which said false answers were relied on by the insurer. Said questions and answers are set forth as follows: "Do you use alcohol or malt liquors at all?" "Do you drink daily?" "Did you ever drink to intoxication or excess?" To all of which questions assured answered "No." Also the following questions: "What illness, disease or accident have you had since childhood?" Answered: "Attack of pneumonia in 1893 of one week's duration, mild attack, and had completely recovered." "Have you had any sickness, ailment or injury that has not been named or described above?" Answered: "No." "Who was the last physician who attended or prescribed for you?" Answered: "Johnson Patrick, Jonesboro, Ark., 1893, for pneumonia."

There was...