Security Ben. Ass'n v. Farmer, 4-4476.

• Decision Date: 21 December 1936
• Docket Number: No. 4-4476.,4-4476.
• Citation: 99 S.W.2d 580
• Parties: SECURITY BEN. ASS'N v. FARMER.
• Court: Arkansas Supreme Court

99 S.W.2d 580

SECURITY BEN. ASS'N v. FARMER.

No. 4-4476.

Supreme Court of Arkansas.

December 21, 1936.

Appeal from Circuit Court, Mississippi County, Chickasawba District; G. E. Keck, Judge.

Action by Ruth Farmer against the Security Benefit Association. Judgment for plaintiff, and defendant appeals and plaintiff cross-appeals.

Judgment affirmed.

C. M. Buck, of Blytheville, for appellant.

Holland & Barham, of Blytheville, for appellee.

McHANEY, Justice.

This is an action by appellee against appellant to recover on a beneficiary certificate for $2,000 issued by appellant on the life of Brinnie L. Farmer, in which appellee was named the beneficiary. The complaint alleged that Mrs. Farmer died on February 1, 1935, proof of death was furnished, and payment was refused. It further alleged that the said certificate shows the age of the deceased as 44 years at the time of the issuing of the policy, when as a matter of fact she was 57 years old; that said facts were known to appellant's district manager, one Essig, who wrote the application for the policy; that said agent was well acquainted with the family and that he prepared the said application without informing the insured that he had misstated her age; that the insured informed said agent that she had had an operation several years before, but that said agent in the application answered a question in regard thereto in the negative; and that the insured had no knowledge or information that the said agent had put the wrong answers in her application. She prayed judgment for $2,000, with interest, 12 per cent. penalty, and a reasonable attorney's fee. Appellant answered admitting the issuance of the certificate, the correct age of the insured, the proof of death, and date of her death. It denied the other allegations of the complaint. It further answered that it was a fraternal beneficiary association without capital stock, organized and operated under the laws of Kansas, and licensed to do business as a fraternal beneficiary association under the laws of Arkansas; that it is organized for the benefit of its members and their beneficiaries and not for profit; that it has a lodge system with ritualistic form of work; that the insured applied for a beneficiary certificate, and in her application stated that she was born on September 25, 1890, when in truth she was born on September 25, 1877, and that her age at nearest birthday was 44 years, when in truth it was 57; that she answered the question, "Are you now in good health?" in the affirmative; that other questions as to whether she had been in a hospital, whether she had been under the care of a physician in the past five years, whether she had undergone a surgical operation, in the negative. It claimed that it relied upon the answers in the issuance of said certificate; that the insured warranted them to be true and because of their falsity appellant was not liable. It further alleged that the insured was not in good health at the time the policy was issued and was not in good health at the time it was delivered, and for all of which reasons it was not liable. The case was tried to a jury which resulted in a verdict and judgment for appellee, and the case is here on appeal.

The policy or certificate was dated August 21, 1934. It was not delivered until November 19, 1934, because at the time it was first presented for delivery the insured was not able to pay the premium thereon and at her request the policy was held until November 19, 1934, when it was delivered, and a health certificate was asked for and obtained by said agent at the time of delivery.

There is a dispute in the evidence as to whether the insured was in good health at the time the policy was delivered on November 19, 1934. The appellee, who was present at the time the policy was delivered, stated that said agent, Mr. Essig, brought it to their home just as they were getting ready to leave to go to Blytheville; that he told them that because of the delay in delivering it she would have to sign a statement of good health which he presented and asked her to sign, which she did; that neither she nor her mother read the statement nor was it read to them. She also testified that her mother was in good health and had been ever since the date of the application for the insurance; that she had done her work about the house and the farm and had not been sick. A number of other witnesses testified as to insured's good health both before and after the application and before and after the delivery of the policy. Dr. Fox testified that he had treated her and had prescribed for her between the date of the application and November 19, 1934. We think the evidence of good health at the date of the delivery of the policy was properly submitted to the jury. The court told the jury that if they found the deceased was in...