Standard Life & Acc. Ins. Co. v. Sale

• Decision Date: 15 April 1903
• Docket Number: 1,152.
• Citation: 121 F. 664
• Parties: STANDARD LIFE & ACCIDENT INS. CO. v. SALE.
• Court: U.S. Court of Appeals — Sixth Circuit

121 F. 664

STANDARD LIFE & ACCIDENT INS. CO. v. SALE.

No. 1,152.

United States Court of Appeals, Sixth Circuit.

April 15, 1903

H. R Boyd and C. A. Lightner, for plaintiff in error.

Josiah Patterson, for defendant in error.

Before LURTON and SEVERENS, Circuit Judges, and WANTY, District Judge.

SEVERENS Circuit Judge.

This is a suit brought by Mary E. Sale, the defendant in error, to recover the sum of $9,000 upon an accident insurance policy issued to her husband, Dr. E. Paul Sale, June 18, 1900, and in which she was the beneficiary. The insurance was for one year. Dr. Sale was a physician practicing at Memphis, Tenn and was a member of the faculty of the Memphis Hospital Medical College. On April 29, 1901, while on a visit to a patient, he suffered an accident from being thrown by his horse violently upon a stone pavement, whereby the neck of the femur of his right leg was broken. He did not recover from the accident, and died on the 8th of June following. The policy stipulated for the payment of $9,000 to the wife of the insured if death should result from the bodily injuries therein mentioned, 'as the proximate and sole cause thereof,' and contained the following statements and agreement on the part of the insured:

'The insured on the acceptance of this policy makes the following true and complete statements, which are hereby made a part of the contract of insurance, and if any of said statements shall be untrue in any respect, then this policy shall be null and void. * * *

'(j) I have never had fits or disorders of the brain, vertigo, or hernia, or any bodily or mental infirmity or disorder, except as herein stated.

'(k) My habits of life are correct and temperate, and I am in sound condition mentally and physically, except as herein stated.'

The insurance company rested its defense upon these grounds First, that the policy was void for the reason that the insured had, prior to this insurance, suffered a bodily disorder which increased the risk; second, that at the time the insurance was effected he was not in sound physical condition, as he stated; and, third, that the accident was not the proximate and sole cause of the death of the insured.

There were a verdict and judgment for the plaintiff for the sum of $9,418.50.

Upon the trial of the issues before the court and a jury, it was shown that in the latter part of April, 1900, the insured had an attack of pneumonia or of bronchitis (it is not clear which), and that acute nephritis, or inflammation of the kidneys, was developed; that he was in the care of a physician for some time; that a chemical analysis of the urine made at that time disclosed a derangement of the kidneys, but whether of the nature of Bright's disease, so called, or whether of a merely temporary nature, did not certainly appear; that he dieted for the trouble about six weeks, and seemingly had recovered at the time the policy was issued; and that he resumed his professional practice and continued it until the time of the accident, in April, 1901. The evidence contained in the record, upon the character and gravity of the disorder of the insured, both before and at the date of the policy, gives ground for widely different conclusions. Whatever view we might ourselves take of the case upon its facts, we are unable to say that a jury might not, without acting unreasonably, come to a different conclusion. The jury adopted that most favorable to the plaintiff, upon the issues presented to them by the court, for they must, at least, have found that Dr. Sale did not believe that he had at any time a serious malady.

There was also evidence showing that, after the accident, very serious kidney derangement appeared; and it is hardly open to dispute, and is perhaps not disputed, that a kidney disorder contributed with the accident to cause the death of the insured. But whether this disorder existed at the time of the accident, or was a consequence developed by it, was, on the evidence, a question for the jury; it being possible to conclude that the latter was the fact. At the close of the testimony, counsel for the defendant moved the court for a peremptory instruction to find a verdict for the defendant. The motion was denied. For the reasons already stated, we think that in this there was no error.

A statute of Tennessee (Laws 1895, p. 332, c. 160, Sec. 22) relating to representations and warranties in contracts of insurance reads as follows:

'Be it further enacted, that no written or oral misrepresentation or warranty therein made in the negotiations of a contract or policy of insurance, or in the application therefor, by the assured or in his behalf shall be deemed material, or defeat or void the policy, or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter represented increase the risk of loss.'

But it is clear that it does not change or affect the general law of insurance applicable to the facts in this case, for it is not disputed that the matter which was the subject of the warranty increased the risk of loss, if the statement was not true, and in such case the matter is left by the statute as before.

The learned judge, in his instructions to the jury with reference to the interpretation and effect of the statements of the insured regarding his physical condition previous to and at the date of the issuance of the policy, said this: 'Now, when a man says that he has no bodily infirmity, it means that he does not know or suspect or believe that he has any bodily ailment of a permanent character, such as is calculated to weaken the constitution impair the strength of the system, or to shorten life. It consequently does not include mere temporary ailment which is curable and passes away by treatment--for example, like a cold or a case of the grip, when it has passed away, or an acute indigestion or colic, or those many ailments which a man may suffer from overeating or overdrinking; acute alcoholism, such as a man getting too much whisky on a sudden occasion, so he would not be habitually subject to it, would be a condition from which he would recover, and would not be a serious ailment, although a very inconvenient one while it lasted.'

And further:

'Now, if Dr. Sale knew or believed or suspected that he had a serious ailment of this kind, and stated that he never had any bodily or mental infirmity, that would be a false statement,

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