Phillips-Morefield v. Southern States Life Ins. Co., 6701.

• Decision Date: 20 June 1933
• Docket Number: No. 6701.,6701.
• Citation: 66 F.2d 29
• Parties: PHILLIPS-MOREFIELD et al. v. SOUTHERN STATES LIFE INS. CO. OF ALABAMA.
• Court: U.S. Court of Appeals — Fifth Circuit

66 F.2d 29 (1933)

PHILLIPS-MOREFIELD et al. v. SOUTHERN STATES LIFE INS. CO. OF ALABAMA.

No. 6701.

Circuit Court of Appeals, Fifth Circuit.

June 20, 1933.

H. C. Tillman and Pat Whitaker, both of Tampa, Fla., for appellants.

Geo. P. Raney, of Tampa, Fla., and Shepard Bryan, of Atlanta, Ga., for appellee.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

FOSTER, Circuit Judge.

Clarence E. Phillips obtained a policy of life insurance in the amount of $10,000 from the Southern States Life Insurance Company of Alabama, appellee, payable to his wife as beneficiary. The policy was issued on July 29, 1925, and contained the usual clause making it incontestable after two years, and a provision for double indemnity, in the event the insured should die from violent, external, and accidental causes before reaching 60 years of age. The policy further provided that, if the insured should die before July 29, 1933, all premiums paid would be refunded, that, in case of permanent disability by injury before the insured reached the age of 60 years, he should receive $100 monthly, and that loss of sight of both eyes would be considered permanent disability. Phillips died from natural causes on February 14, 1926. He was 50 years of age when the policy issued. The insurance company declined payment and tendered the premium that had been paid.

On July 20, 1926, within the contestable period, the beneficiary brought suit in a state court to recover on the policy. Subsequently she remarried. The suit was removed to the District Court, and in defense the insurance company filed an equitable plea alleging substantially that, in the application for insurance, made a part of the policy, the insured had made material false representations in having untruthfully answered "No" to the following questions: "(1) Have you consulted a physician or any practitioner for examination, treatment, or advice within the past five years? (2) Have you ever received any severe injury or undergone any surgical operation? (3) Are you deformed, maimed, or crippled in any way? (4) To what extent do you use alcoholic liquors? (5) How long have you drank to this extent? (6) Have you been intoxicated during the past five years?" A motion to dismiss the equitable plea was overruled, and plaintiff filed a replication denying that the answers in the application were false and denying that they were material to the risk. There were various rulings on the pleadings.

The witnesses were heard before the judge, and in due course he found the facts, in substance, as follows: Prior to the application for the policy the insured had received a severe injury. In 1902, while working on a boiler, a piece of metal accidentally striking him in the left eye caused loss of sight in that eye, and the eye was blind when the application was made. Prior to the application, he habitually, periodically, used alcoholic liquors to excess, during the years 1920, 1921, 1922, and until the fall of 1923; that he became intoxicated from the excessive use of intoxicating liquors about every six months, more or less; that his sprees sometimes lasted for four or five days; that he was intoxicated about one year before the issuance of the policy and was on a spree shortly before his death; that the information sought to be elicited from the applicant by the questions untruthfully answered was necessarily within his knowledge; that he must have known that his answers were untrue at the time he made them; that the company relied upon the truthfulness of the answers in issuing the policy and only learned of their falsity after the death of the insured. Judgment was entered in favor of the insurance company, appellee, decreeing cancellation of the policy. This appeal followed.

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