Reliable Life Ins. Co. v. Elby, 5--5017
| Decision Date | 03 November 1969 |
| Docket Number | No. 5--5017,5--5017 |
| Parties | The RELIABLE LIFE INSURANCE CO., Appellant, v. Ortis ELBY, Appellee. |
| Court | Arkansas Supreme Court |
Don Gillaspie, El Dorado, for appellant.
O. K. Robertson, El Dorado, for appellee.
The Reliable Life Insurance Company petitioned the chancellor for an order of cancellation of insurance issued on the life of Fannie M. Elby. The petition was filed after Mrs. Elby's death and Ortis Elby, Beneficiary, was named as defendant. The prayer for cancellation was based on a policy requirement that the insured be in good health on the date of policy issuance. The trial court held the requirement of good health to have been waived because the insured made disclosure of her medical history to the insurer's agent on the date of the application. The single point advanced by Reliable Life on appeal is that the finding of waiver was against the preponderance of the evidence.
Appellee Ortis Elby was his only witness. His evidence may be summarized thusly: Reliable's agent solicited an application and filled in the answers for a five hundred dollar policy on the life of Elby's wife; Mrs. Elby signed by mark; present were the agent and the Elby couple; in answer to the agent's inquiries, Elby informed him that some three or four years previously Mrs. Elby had been hospitalized and suffered a hemorrhage; the agent asserted that experience to be too remote to be material; he gave the agent the name of the attending physician; and on the date of the application Mrs. Elby was in apparent good health and had so appeared for some time. Other proof showed the date of the application to be July 28, 1967, and the date of death to have been September 12, 1967.
The only witness for Reliable was Dr. Thibault. He testified that Mrs. Elby was his patient in July 1964 and was in his office on three occasions during that month for treatment; that he gave her medication for extremely high blood pressure; that the pressure was down to normal when he saw her the third time; that she was suffering from hypertensive disease which prevailed until her death and actually caused a fatal hemorrhage of the brain; that he next saw her at the hospital at the time of death; and that the autopsy performed by another doctor substantiated his diagnosis.
Reliable's solicting agent did not testify, nor was any reason for his absence placed in the record. He could have been a material witness in that the answers he allegedly inserted in the application did not correspond to Elby's testimony. The chancellor...
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