New York Life Ins. Co. v. Odom
Decision Date | 28 December 1937 |
Docket Number | 8573.,No. 8572,8572 |
Citation | 93 F.2d 641 |
Parties | NEW YORK LIFE INS. CO. v. ODOM et al. (two cases). |
Court | U.S. Court of Appeals — Fifth Circuit |
Shepard Bryan and W. Colquitt Carter, both of Atlanta, Ga., and R. Lanier Anderson, Jr., of Macon, Ga., for appellant.
Jno. R. L. Smith, of Macon, Ga., for appellees.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
Appellant, New York Life Insurance Company, brought these two suits in equity against the insured and the beneficiaries, seeking cancellation of two policies of life insurance and cancellation of their reinstatement, on the ground that the insured had given false answers to questions material to the risk in applications for the reinstatement of the policies, after they had lapsed for nonpayment of premiums. The cases were tried together and submitted on practically the same evidence. The appeals are from judgments dismissing the bills.
The District Court found the material facts substantially as follows:
(No. 8572). On January 17, 1920, appellant issued its policy of life insurance, No. 6,644,320, to Sherman E. Odom, in the sum of $5,000. His wife, Mamie C. Odom, was named as beneficiary. Later, Bertha O. Stephens, his sister, was substituted as beneficiary. (No. 8573). On June 1, 1933, appellant issued another policy, No. 15,229,839, to Odom in the sum of $5,000, with Mamie C. Odom, his wife, as beneficiary. Both policies contained the following provisions:
The original applications contained the following provisions:
The policies lapsed for nonpayment of premiums. Odom applied for reinstatement of the first policy on June 13, 1934, and for the reinstatement of the second policy on April 24, 1934, in each case signing an application in terms as follows:
The reinstatements were arranged for him by R. M. Foster, a soliciting agent of appellant, who was authorized to perform such services, and who signed the applications as a witness. The answers to the first and second questions were untrue. The false answers were inserted in the applications by Foster, who did not know whether they were true or false and considered the applications for reinstatement a matter of routine. The applications were transmitted to Hollingsworth, cashier for the company in Atlanta, who had authority to approve them and did so. The necessary premiums were paid and the policies were reinstated. In September, 1934, appellant learned that the answers were false, and on October 2, 1934, notified the insured and the beneficiaries the reinstatements were rescinded. Odom did not know his policies had lapsed until he received these notices. The insured was alive when the cases were decided. There was no fraud or intent to deceive or mislead the company on the part of the insured about the reinstatements. The payments made on the reinstatements were tendered to the insured and declined. Copies of the applications for reinstatement were not attached to the policies, nor given to the insured until requested, after notice of rescission was given.
Error is assigned to the findings that the...
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