National Life & Accident Insurance Company v. Shibley
| Decision Date | 27 January 1936 |
| Docket Number | 4-4102 |
| Citation | 90 S.W.2d 766,192 Ark. 53 |
| Parties | NATIONAL LIFE & ACCIDENT INSURANCE COMPANY v. SHIBLEY |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge; affirmed.
Action by Bessie Shibley against the National Life & Accident Insurance Company. Judgment was for plaintiff. Defendant appeals.
Judgment affirmed.
Roy Gean and Pryor & Pryor, for appellant.
Hardin & Barton, for appellee.
Appellee recovered judgment for the face of an accident insurance policy issued by the appellant insurance company upon the life of James A. Shibley, her son. The policy was dated November 3, 1933, and the insured died March 8, 1934. The insured was a mechanical engineer, and had been employed as such in Cuba for several years. While there he contracted a disease called Tropical Sprue. This disease was defined by one of the doctors who testified in the case as "an inflammatory condition of the mucous membrane of the alimentary tract from the mouth all the way through, and is an intestinal infection." It is a serious ailment with a high per cent of fatalities, and the victims of it are required to live upon a restricted diet, which excludes all sweets and fats.
It is first insisted for the reversal of the judgment that the application for the insurance concealed the fact from appellant insurance company that the applicant was afflicted with this disease, and that the policy would not have been issued had that fact been disclosed. It is insisted also that the policy never became effective as a contract of insurance because it was therein stipulated that it should not be effective, unless the insured was in good health at the time of its delivery, and it is insisted that he was not in good health at that time.
The following questions and answers appear in the application "Have you now any disease?" "No." "Are you now affected in any way by any past or present sickness or injury?" "No." "Within the past five years have you had any sickness or bodily injury?" "Yes." "If so describe below which disease or injury you have had within the last five years?" "Nov. year 1932." "Kind of disease or injury?" "Intestinal infection, duration three months." "Do you represent all of your foregoing answers are correct?" "Yes." "Do you understand that you will have no insurance until the premium for the first insurable period is paid, and the policy applied for is issued and delivered to you while in sound health and free from any bodily injury except as provided in a binding receipt?" "Yes."
It is insisted these answers constitute a warranty and were shown to be false, and that the policy was never effective because at the time of its delivery the insured was afflicted with the disease of Tropical Sprue. We think, however, that the court properly refused to direct a verdict in the insurance company's favor on either ground for the following reasons:
The application for the insurance was taken by R. R. Cornelius, a soliciting agent for the insurer, who wrote the answers above quoted. The application was made for insurance in the sum of $ 4,000. Cornelius was the associate of the insured. It is certain that, after the application had been made and presented to the insurance company Cornelius called at the home of the insured, who resided with his mother. The insured was away from home engaged in his employment of assistant district engineer of the State Highway Department. Mrs. Shibley was at home, and the testimony is in irreconcilable conflict as to the conversation which then occurred between her and Cornelius.
She testified that Cornelius told her the company required more definite information about the "intestinal infection" mentioned in her son's application. She testified that she told Cornelius everything she knew about her son's condition, that Dr. Krock, her son's physician, who resided in Fort Smith, said her son had Tropical Sprue, and she referred Cornelius to the doctor for more detailed information. Cornelius denied that he was given this information, but this question of fact was submitted under instructions which correctly declared the law applicable thereto. Two circumstances strongly corroborate the testimony of Mrs. Shibley. One of these is that the application had been amended to make the insurance applied for read $ 3,000 instead of $ 4,000. The other is that the answer appearing in the original application that the applicant had "fully recovered" was erased by line drawn through those words. Cornelius admitted that these alterations in the application had been made at the office of the insurance company after the receipt there of the application. As proof of the fact that the insured knew of his ailment, the company offered in evidence an application made in December, 1933, by the insured to another insurance company in which he described his intestinal infection as Tropical Sprue. It appears however that that company, with this information, issued the policy applied for.
Upon the question of fraud in the issuance of the policy and its ineffectiveness as a contract of insurance because the insured was not in good health at the time of its delivery, there was testimony to the following effect: Mrs. Shibley testified that her son was in apparent good health and was regularly engaged in his employment. A physician testified that on August 15, 1933, the insured made application for employment with the Phillips Petroleum Company in Oklahoma, and that the witness examined the applicant to ascertain his physical condition. Applicant advised the witness that he had contracted Tropical Sprue in Cuba, but notwithstanding this information witness was of the opinion that the applicant's condition was good, and he was put to work for the company. Applicant later left this employment, and was employed in this State by the Highway Department.
The law applicable to these facts was declared in instructions conforming to the law as announced in the case of American National Insurance Company...
To continue reading
Request your trial
-
Clay County Cotton Co. v. Home Life Ins. Co.
...166 Ark. 403, 266 S.W. 279; Missouri State Life Insurance Company v. Barron, 186 Ark. 46, 52 S.W.2d 733; National Life & Accident Insurance Co. v. Shibley, 192 Ark. 53, 90 S.W.2d 766; Prudential Insurance Company v. Croley, Ark., 135 S.W.2d In the Meyer case, where the foregoing principle w......
-
Southern National Insurance Co. v. Heggie
...174 S.W.2d 931 206 Ark. 196 Southern National Insurance Company" v. Heggie No. 4-7130Supreme Court of ArkansasOctober 18, 1943 ... \xC2" ... of life insurance, in the sum of $ 500, naming her husband as ... beneficiary. A ... Roberson, 188 Ark. 1018, 69 ... S.W.2d 275; National Life & Accident Ins. Company v ... Threlkeld, 189 Ark. 165, 70 S.W.2d 851, and ... Life & Accident Insurance Company v. Shibley, ... 192 Ark. 53, 90 S.W.2d 766, and under the facts as found by ... the ... ...
-
Duvall v. Massachusetts Indem. and Life Ins. Co., 87-288
...997 (1912); see also Metropolitan Casualty Ins. Co. v. Fairchild, 215 Ark. 416, 220 S.W.2d 803 (1949); National Life & Accident Ins. Co. v. Shibley, 192 Ark. 53, 90 S.W.2d 766 (1936). Dr. Rozzell testified in his deposition that the strenuous activity of the insured's job was directly relat......
-
Southern Nat. Ins. Co. v. Heggie
...in the progress of a cause in civil cases." Furthermore, under the ruling of this court in the case of National Life & Accident Insurance Company v. Shibley, 192 Ark. 53, 90 S.W.2d 766, and under the facts as found by the jury in this case, a defense that the insured was not in good health ......