National Life & Accident Insurance Company v. Blanton
| Decision Date | 19 October 1936 |
| Docket Number | 4-4381 |
| Citation | 97 S.W.2d 77,192 Ark. 1165 |
| Parties | NATIONAL LIFE & ACCIDENT INSURANCE COMPANY v. BLANTON |
| Court | Arkansas Supreme Court |
Appeal from Jackson Circuit Court; S. M. Bone, Judge; affirmed.
Judgment affirmed.
Barber & Henry and Ira J. Mack, for appellant.
J F. Parish, for appellee.
On March 21, 1934, Della Blanton signed an application for a life insurance policy upon which, March 26, a policy was issued by appellant company. She died on May 8, 1934, the premiums due on said policy having all been regularly paid. Notice of death was given by appellee, the daughter of Della Blanton and the beneficiary named in the policy. On June 29, 1934, appellee was paid the sum of $ 3.60 by the appellant company, the amount of premiums which had been paid by the assured or her agents, and executed a written instrument which recited that the above sum was accepted in settlement of all claims under the policy which she surrendered for the following reason: "Not an insurable risk." After this appellee filed suit against the appellant to recover the face of the policy in the sum of $ 540 less the $ 3.60. She alleged that the policy was in full force at the time of the death of the assured, and further, that appellant had denied liability on account of the policy, and, through misrepresentation, threats and fraud, obtained a release from her which she alleged was not binding upon her.
The answer denied the allegation relating to the procurement of the release which was pleaded in full satisfaction of appellee's demand and the further defense was tendered that the assured, in her application, stated that she was in sound health and not suffering from any diseases named in the policy for which no obligation was assumed by the insurer; that appellant did not require a medical examination, but relied upon the statements made by the assured in her application which she well knew at the time were false; that at the time of the said application and at the time of the delivery of the policy the assured was in unsound health and suffering from diseases of the heart, liver, kidneys and lungs and her general health was poor and had been for some years as she well knew.
On the issues joined at the trial of the case evidence was adduced which resulted in a verdict and judgment in favor of the appellee for the amount sued for. The court thereupon assessed a penalty of twelve per cent. and an attorney's fee, which, together with the amount of the verdict, aggregated the sum of $ 752.54. From that judgment an appeal has been duly prosecuted and the judgment is sought to be reversed for failure of the trial court to direct a verdict in behalf of appellant on its motion duly made. This motion was grounded upon the contention that the policy was void because of misrepresentations by the assured regarding her health, which, it is claimed, were established by the undisputed evidence; also, upon the ground that the evidence failed to establish the invalidity of the release for the causes alleged by the appellee.
On the first contention it may be said that the question of the health of the assured was one of fact. Old American Ins. Co. v. Davis, 175 Ark. 1170, 300 S.W. 415. The evidence adduced on behalf of appellee consisted of the testimony of a number of lay witnesses who testified that they had known the assured for some considerable time before her death and, in a general way, testified that during that time she had not been well. Some testified as to conversations had with her in which she had stated around the first of March, 1934, that she had been sick with the flu a month or two previous to that time. Some testified that she seemed to have "smothering spells" and that her legs were swollen to such extent that one had big blisters raised on it which burst, causing a discharge of water. One of the witnesses, Mrs. Virgil Hutchinson, testified that early in March, 1934, witness went with the assured to Newport to see Dr. Gray and on reaching the town she had a kind of spell and fainted and had to wait an hour or two before they went to the doctor's office; that assured was in Dr. Gray's office for thirty minutes, but witness did not go in with her.
One of the witnesses testified that she visited the assured on the afternoon preceding her death that night. She sent for a doctor who gave her a "shot"; that witness had seen a number suffering with pneumonia and in her opinion the assured was not afflicted with, and did not die from, that disease.
The testimony of these witnesses is not undisputed. The beneficiary in the policy, a daughter of the assured, testified that except for bad teeth and a sinus trouble from which her mother suffered a great deal, she had not been sick enough to be in bed but two or three times during the four years preceding witness' testimony; that she was sick in the winter of 1932 and had a case of flu in the winter of 1933; that at the time she made the application for insurance, which was at the home of a Mr. Gist and in witness' presence, she was in good health. Witness stated that the cause of her mother's death was pneumonia with which she had been ill about a week or ten days preceding her death.
A Mr. Trentham, who took the assured's application for insurance as the agent for appellant company, testified that he had known Mrs. Blanton for some time before she signed the application. He failed to make any statement in his testimony as to the assured's health at the time the application was taken.
Dr. Gray, a physician, who, as the testimony of appellant disclosed, had been visited by the assured early in March, 1934, testified that she came to his office, but that he did not recollect any particular examination he made. He stated that he must have made one, however, or he would not have written a prescription for her. Several prescriptions were introduced in evidence and the doctor stated that he could say definitely, because of the character of these prescriptions, that the assured was not suffering from any ailment of the heart. He further stated that Mrs. Blanton was a relief patient, but that he gave such patients the same kind of examination as those who were able to pay and that he would have been able to find out in thirty minutes what her trouble was. The prescriptions he had given Mrs. Blanton were for quinine and laxatives--one was a sedative, but the doctor did not recall for what it was prescribed.
The beneficiary, Imah Blanton, also testified that...
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