National Life & Accident Ins. Co. v. Davison

• Citation: 58 S.W.2d 691
• Decision Date: 03 April 1933
• Docket Number: No. 4-2848.,4-2848.
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. DAVISON.
• Court: Supreme Court of Arkansas

Page 691

58 S.W.2d 691

NATIONAL LIFE & ACCIDENT INS. CO. v. DAVISON.

No. 4-2848.

Supreme Court of Arkansas.

April 3, 1933.

Appeal from Circuit Court, Cross County; Neil Killough, Judge.

Action by Sadie Davison against the National Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals.

Judgment reversed, and cause dismissed.

This appeal is from a judgment of the circuit court on appeal from the common pleas court of Cross county in favor of the beneficiary, Sadie Davison on a policy of insurance issued by the appellant company on the life of Lucy Mitchell.

Appellant defended on the ground that the policy was a wagering contract, alleging Sadie Davison the beneficiary, had suggested the taking of the policy and paid the premiums, having no insurable interest in the life of the insured; that insured had made false representations and warranties in her application for the insurance, answering that she had never had endocarditis, diabetes, and several other diseases specified in the question in the application, and that both insured and the beneficiary knew when the application was made that the answers were not true, insured being afflicted with both endocarditis and dropsy at the time the application was made of which diseases she died on the day the policy was delivered at the house of Sadie Davison, and to Sadie Davison in fact and not to the insured; that the insured was not in sound health at the time the application was made, nor upon the day of the attempted delivery of the policy, all of which was known to the beneficiary.

The case was tried in the court of common pleas, and judgment was recovered by the beneficiary, from which an appeal was taken to the circuit court where recovery was again had, and judgment rendered for the amount of the verdict with interest, penalty, and attorney's fees, from which this appeal comes.

It appears from the testimony that Sadie Davison was not related to the insured by either blood or marriage, although she was present when the application was made. Several negroes were sitting around in her back yard on Wednesday, the day it was made. The agent and the superintendent of the defendant company came up, and Castleberry, the agent, said they ought to be able to write somebody in the crowd. Somebody said, "We haven't any money — it's a broke crowd." Castleberry then asked Lucy how about writing her some insurance, and she replied she did not have any money, and Castleberry suggested that she borrow some money from Sadie. Lucy said she would if Sadie would lend her the money, and Castleberry said, "Sadie loan this girl some money, she will pay you back." Lucy agreed to pay it back Saturday, and Sadie said, "I have got that kind of money." The inspector then began to write the application. To the question of whether any of her people had ever died with cancer or Bright's disease, etc., she answered, "No, not that I know of." He asked her when she had been treated by a doctor last, and she replied, "In July, Dr. Russell." She did not know what disease she had been treated for, and the agent said, "I will suggest chills and fever." Sadie went into the house, got 30 cents, and brought it back to Lucy, who handed it to the agent, telling Sadie she would have to have 15 cents more, which Sadie supplied, and the inspector gave a receipt to Lucy. He did not read the questions and answers back to Lucy, the insured, after the application was written, and the agents left after the money was paid. Castleberry came back the next Wednesday a week later, and Lucy paid the 30 cents back to Sadie on the following Saturday, after the application was written, and also gave her 30 cents more to pay the next premium when the agent returned. The agent of the company delivered the policy on Lucy to Sadie, appellee, in the morning before Lucy died that afternoon, exactly two weeks from the day the application was written. Sadie paid the 30 cents to Mr. Castleberry that Lucy let her have for the purpose. She told the agent the day the policy was delivered that Lucy was real sick and he should go to see her, to which she said he replied, "Let her die." Castleberry inquired where Lucy was staying, and Sadie told him she was in the next house, and said that the superintendent and agent walked up there. The policy was delivered to Sadie, who gave the insurance agents 30 cents, and Lucy, the insured, died about 2 or 2:30 that afternoon. The insurance agents came back on the next Thursday, and Sadie told them Lucy died the day before. Castleberry and the inspector on Friday evening came to get Sadie to sign some papers and take the money back Lucy had paid on the insurance, the inspector telling Sadie that his business there was to get her to sign a release and give back the money which Lucy, the insured, had paid for the insurance. This she refused to do, but she said Castleberry did get hold of the policy, asked to see it a minute, and kept it. Appellee explained that Lucy Mitchell left the money with her to pay the second premium, saying that she did not know the insurance men, and, since it was written at her house, they would be there to collect the money. She said Lucy was at her house, left the money, and appeared to be in as good health as anybody; that she did not appear to have anything the matter with her when the application was made. "That she could do around, dance around from the phonograph, wasn't bloated, wasn't swollen, was able to do house work; didn't complain of being sick; that she didn't know but what Lucy Mitchell's health was better than her own health." She said also that the insurance agent didn't ask Lucy if she had had Bright's disease, T. B. or cancer, or the other diseases mentioned in the question at the time the application was made, but whether any of her people had died of such diseases, and she told him "No"; that the agent did not ask her if she had any of these diseases; that she told the agent the name of the doctor who had treated her in July, and that she did not know what for, and the agent suggested "chills and fever"; that she told the agents on the morning the policy was delivered that Lucy was sick, it was two weeks from the day the application was made, and the inspector replied, "Let her die." She also said that Lucy put her name as beneficiary in the policy because she was her dearest friend; that Lucy was eating at her home most of the time, and her trunk was there at her home.

Other witnesses testified about the occurrences about as already stated, and that the...