Talley v. Metro. Life Ins. Co

• Decision Date: 12 January 1911
• Court: Virginia Supreme Court
• Parties: TALLEY v. METROPOLITAN LIFE INS. CO.

69 S.E. 936

111 Va. 778

TALLEY

v.METROPOLITAN LIFE INS. CO.

Supreme Court of Appeals of Virginia

Jan. 12, 1911.

1. Insurance (§ 291^*) — Life Insurance — Avoidance of Policy for Misrepresentation—Concealment—Effect.

An applicant for life insurance was asked at his examination, July 1, 1907, the following questions: "Malaria or other fevers? Answer: Yes. Any disease of the chest or lungs? Answer: Yes." And was asked to "give full particulars of every illness you have had since childhood, and name of every physician who has ever attended you or prescribed for you, " in answer to which question the applicant stated that in November, 1906, he had a mild attack of urethritis, without complications, which lasted seven days, when he was attended by a physician named; that in December, 1905, he had a mild attack of bronchitis, without complications, lasting three days, in which he had been attended by no physician. Upon this application and an examination by the insurer, a policy for $1,000 was issued to the plaintiff as beneficiary, and the insured died four mouths thereafter of tuberculosis. In a suit on the policy, there was evidence showing that the insured was attended by two physicians in April and May, 1907. by one of them for a cold; that in June, 1907, before application for the policy in question, the insured consulted a physician and complained of feeling bad, having a cough, fever, loss of appetite and of energy; and that this physician secured a sample of sputum, which he examined, finding therein the germs of tuberculosis, the same examination being made by another physician showing the same effect, which was communicated to the insured: and that at about the time the policy was delivered the insured was in a sanatorium for treatment as a consumptive. Held, that the applicant in his answers had concealed material facts which were tantamount to a fraud on the company, and avoided the policy.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 681-690; Dec. Dig. § 291.*]

2. Insurance (§ 291*) — Ltfe Insurance — Avoidance of Policy — Misrepresentations—Concealment—Answer Putting Insurer on Inquiry.

In answer to a question contained in an application for insurance, "Any disease of the chest or lungs?" the applicant answered, "Yes." and thereafter he was asked, "Give full particulars of every illness you have had since childhood, and the name of every physician who has ever attended you or prescribed for you." Held, that the latter question comprehended the first, and called for particulars under the formercategorical answer, and was a sufficient prosecution of the inquiry upon which the insurer was put by the applicant's answer to the former question, and that the applicant's failure to communicate to the insured under this last question the facts material to the risks which were known to him and which would have caused his rejection avoided the policy.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 681-690; Dec. Dig. § 291.^2-*]

Error to Circuit Court of City of Richmond.

Action by Lemuella Talley against the Metropolitan Life Insurance Company. Judgment for defendant, and the plaintiff brings a writ of error. Affirmed.

L. O. Wendenburg, for plaintiff in error.

B. Rand. Wellford, for defendant in error.

HARRISON, J. This suit was brought by the plaintiff in error to collect from the defendant insurance company a life insurance policy in which she was named as the beneficiary. Upon the trial there was a demurrer to the evidence, and a judgment thereon in favor of the defendant company, to which judgment this writ of error was awarded.

The record shows that on the 29th day of June. 1907, W. W. J. Talley made application to the Metropolitan Life Insurance Company for a policy of life insurance upon his life for the benefit of his mother, the plaintiff in error, in the amount of $1,000. At the time the application was made Talley was 21 years of age, had finished his course in medicine, and had just taken his examination before the State Medical Board for license to practice medicine. On July 1, 1907, the applicant was examined by Dr. A. L. Wellford, the local medical examiner for the insurance company, to ascertain his standing as an insurance risk. This examination accompanied and formed a part of the application for insurance made two days before. Among other questions the applicant was required to answer in writing were the following: "Malaria or other fevers? Ans. Yes. Any disease of the chest or lungs? Ans. Yes. Give full particulars of every illness you have had since childhood, and name of every physician who has ever attended you or prescribed for you." In answer to this last question the applicant stated that In November, 1906, he had a mild attack of urethritis, without complications, which lasted seven days, when he was attended by Dr. Bosher; that in December, 1905, he had a mild attack of bronchitis, without complications, lasting three days, in which he had been attended by no physician. These are the only questions and answers material to this inquiry. With this examination as the basis for determining the character of the risk, the policy was issued and delivered to the mother of the insured on the 22d of July, 1907, and the insured died of tuberculosis of the lungs four months thereafter.

The uncontradicted evidence shows that the insured was attended by Dr. Miller in April or May, 1907. This appears in the claimant's statement to the company for payment of the policy. It further appears that Dr Call attended the insured in April. 1907, for a cold. It further...