Silver v. National Life and Accident Ins. Co.

• Decision Date: 21 March 1927
• Docket Number: 10,747
• Citation: 6 La.App. 95
• Court: Court of Appeal of Louisiana — District of US
• Parties: SILVER v. NATIONAL LIFE AND ACCIDENT INS. CO., Appellant

6 La.App. 95

SILVER v. NATIONAL LIFE AND ACCIDENT INS. CO., Appellant

10,747

Court of Appeals of Louisiana, Orleans

March 21, 1927

Rehearing Refused March 28, 1927.

Writs of Certiorari and Review Denied in Supreme Court May 23 1927.

Appeal from First City Court. Hon. W. V. Seeber, Judge.

Action by Louis F. Silver, wife and child, against National Life Accident Insurance Company.

There was judgment for plaintiff and defendant appealed.

Judgment affirmed.

Martin Kranz, of New Orleans, attorney for plaintiff, appellee.

Soloman S. Goldman, of New Orleans, attorney for defendant appellant.

OPINION

CLAIBORNE, J.

This is a suit upon a beneficial insurance policy.

The plaintiff alleged that on November 9, 1925, the defendant company insured the life of her mother, Pearline Kolmor, for $ 108.00 in favor of plaintiff as beneficiary; that on February 27, 1926, the assured died; but that the defendant company refused to pay the policy; that by reason of such refusal plaintiff is entitled to double the amount of the policy and also to an amount for attorney's fees to be fixed by the court.

The defendant admitted the issuance of the policy, the death of the assured, and the payment of all premiums, but denied all liability for the following reasons:

1st. That the policy was issued upon the specific condition contained in the policy itself as follows:

"No obligation is assumed by the company prior to the date thereof, nor unless on said date the insured is alive and in sound health. Should the proposed insured not be alive or not be in sound health on the date hereof, any amount paid to the company as premiums herein shall be returned."

2nd. That there is no law which makes it responsible for penalties or attorney's fees under the circumstances of this case.

Further answering, the defendant averred "that it has learned since the death of insured that she was not in sound health on the date the said policy was issued and that prior thereto respondent was not aware of that fact; but that the beneficiary and the insured were aware at the time the said policy was issued and the application therefor signed by her that she was not in sound health, but on the contrary had for some time prior thereto been seriously ill and her health severely impaired; that the disease with which insured was suffering at the date of the policy was the same disease which ultimately caused her death. Respondent avers that the said policy, therefore, never took effect nor went into force and was at all times null and void, and your respondent has offered to return to the beneficiary the amount of premiums paid on said policy, namely $ 3.40, and continues to offer the return of said sum".

There was judgment for plaintiff for the amount of the policy, $ 108.00.

The defendant has appealed, and in this court the plaintiff and appellee prays for an increase of the judgment to the amount claimed by her in penalty and attorney's fees.

Over the objection of the plaintiff there was testimony admitted in support of the answer that on the date of the issuance of the policy and for over one year prior thereto, the assured was not in sound health, but, on the contrary, had been suffering from chronic heart trouble and high blood pressure, and was in imminent danger of death to the knowledge of the assured, but knowledge of that condition was not brought home to the beneficiary.

It does appear, however, from the testimony that the policy was issued "without a medical examination of the assured by a physician". It also appears that the insurance company had an opportunity to ascertain the true condition of the health, habits and occupation of the assured.

Under the view we have taken of this case, we are of the opinion that, under the law and the jurisprudence of this state, the diseased condition of the assured on the day the policy was issued is not a good defense to the payment of the policy, and, consequently, all testimony in support of that defense should have been excluded and the objection to its admissibility should have been sustained.

Act 97 of 1908, p. 139, reads as follows:

"That whenever life, health or accident insurance companies, which issue policies or contracts of insurance to the assured without a medical examination of the assured by a physician, it shall be presumed (whenever it appears that the agent of the company has had an opportunity to ascertain the true condition of the health, habits or occupation of the assured, and has certified to the company the desirability of the risk) that the knowledge acquired, or which might have been acquired with reasonable diligence by the agent of the company in securing the application, as to the health, habits or occupation...