United States Annuity & Life Insurance Company v. Peak

• Decision Date: 07 May 1917
• Docket Number: 357
• Citation: 195 S.W. 392,129 Ark. 43
• Parties: UNITED STATES ANNUITY & LIFE INSURANCE COMPANY v. PEAK
• Court: Arkansas Supreme Court

195 S.W. 392

129 Ark. 43

UNITED STATES ANNUITY & LIFE INSURANCE COMPANY v. PEAK

No. 357

Supreme Court of Arkansas

May 7, 1917

Appeal from Chicot Circuit Court; Turner Butler, Judge; affirmed.

Judgment affirmed.

L. A Stebbins and X. O. Pindall, for appellant.

1. This is the second appeal in this case. 123 Ark. 58; 122 Id. 58. The law was settled there and the testimony the same. 10 Ark. 186; 13 Id. 103; 14 Id 515, 523-4; 44 Id. 383; 92 Id. 554; 123 S.W. 376; 99 Ark. 648; 97 Id. 147; 99 Id 137; 102 Id. 547; 103 Id. 196; 107 Id. 310; 112 Id. 310; 120 Ark. 61.

2. There is no new element in this case--the facts are the same practically.

3. The court in its former opinion has gone to the extreme length possible under the authorities favorable to plaintiff. 1 Elliott on Contracts, § 125; 25 Cyc. 797; Richards on Insurance (3 ed.), § 100; Kerr on Ins., § 141, pp. 347-8; 130 Tenn. 325; 170 S.W. 474; L. R. A. 1915-C 153. The court overlooked these authorities that the material thing is not what the applicant believed, but what would have affected the action of the company.

4. The judgment should be reversed and the cause dismissed. 97 Ark. 147; 133 S.W. 596. The refusal to direct a verdict was in the face of the mandate of this court. 87 Ark. 70; 112 S.W. 176; 95 Ark. 456; 130 S.W. 532.

Baldy Vinson and Garland Streett, for appellee.

1. The instructions given were approved on the former appeal. The law is settled on the former appeal. 97 Ark. 147. But much new testimony was introduced and the proof is not the same. As to the facts the finding on the first appeal is not conclusive. 76 Ark. 377; 75 Id. 452.

2. The jury were properly instructed, and this court will not reverse the judgment on the evidence. 48 Ark. 495. A new trial will not be awarded unless there is a total want of evidence to sustain it. 15 Ark. 540; 19 Id. 671; 23 Id. 61; 24 Id. 251; 23 Id. 131; 40 Id. 168; 57 Id. 577; 34 Id. 632. The verdict is conclusive. 103 Ark. 4; 89 Id. 321; 103 Id. 538; 82 Id. 372; 92 Id. 586; 84 Id. 406; 90 Id. 100; 100 Id. 148. See also 87 Ark. 109; 97 Id. 438; 79 Id. 608.

L. A. Stebbins, X. O. Pindall and N. B. Scott, for appellant in reply.

1. The question of the sufficiency of the evidence is always a question for this court on appeal. 97 Ark. 438; 88 Id. 164; 87 Id. 101; 93 Id. 631; 79 Id. 357.

2. A jury can not arbitrarily disregard uncontradicted and consistent testimony. 67 Ark. 514; 80 Id. 396; 96 Id. 37; 101 Id. 352.

3. The evidence is the same. 79 Ark. 475; 37 P. 147; 148 S.W. 266; 73 F. 974, and many others. The law was not properly submitted to the jury. 79 Ark. 475; 96 S.W. 393-4; 103 Cal. 163, etc.

OPINION

WOOD, J.

This is the second appeal in this case. The opinion on the first appeal is reported in volume 122, page 58, of the Arkansas Reports, where the facts as developed at the former trial are stated as follows:

"Appellee sued appellant to recover on a life insurance policy. The appellant is a life insurance company organized under the laws of the State of Illinois, and is authorized to transact business in the State of Arkansas. On August 14, 1913, Robert F. Peak of Readland, Arkansas, made application in writing to appellant for a policy of life insurance in the sum of $ 5,000, payable to his wife, Pearl S. Peak, as beneficiary. In his application he represented and agreed that his answers to questions propounded by the company's medical examiner should be true, and should be the basis of and the consideration for the contract of insurance applied for. On the same day Peak submitted to an examination by Dr. J. W. Nichols, the local medical examiner of the company. His medical examination, among other things, contained the following:

"Does the chemical examination of the party's urine show albumen or sugar (even in traces) or any abnormality?" "No."

"Doctor Nichols did not obtain a specimen of the applicant's urine on the 14th. He asked Mr. Peak for a specimen, but Peak, having passed his urine before he went to the doctor's office, could not furnish it at that time. The doctor suggested that he would go to Mr. Peak's house the next day to get a specimen, but Peak said he might be gone. The next morning the doctor received a specimen of urine represented to be the urine of Peak. The specimen was delivered to the doctor by Mrs. Annie Peak, the applicant's mother. Doctor Nichols made a careful examination of the specimen of urine received by him from the applicant's mother on the morning of the 15th of August, 1913, and found it to be normal. He had no reason to suspect, after such examination, that Peak was afflicted with Bright's disease.

"On the 17th day of August, 1913, Peak was examined by Dr. C. P. Meriwether of Little Rock, Arkansas, for insurance in another company. Doctor Meriwether testified as follows:

"'Peak looked to be in good condition. An examination, however, showed that his blood pressure was much higher than that of a normal man, and an examination of his heart showed an injured condition or hypertrophy. His urine was loaded with albumen and was of low specific gravity. I found no traces of sugar, but considerable albumen. I told Peak that he might have acute or chronic Bright's disease, and that he ought to go to his family physician, and that I could not tell much about it unless I should make a microscopical examination. I found all kinds of casts. I then told him I thought he had Bright's disease. He told me that he was going to Roswell, New Mexico, and I told him that he ought to be under medical treatment all of the time. We got a medical directory and decided upon a physician at Roswell to whom he should go for treatment. It is not a scientific and medical possibility that the urine of Mr. Peak could have been in a normal condition on the 15th day of August, 1913, in view of the condition I found on the 17th, taking into consideration the condition of his heart, coupled with what I discovered on the microscopic and chemical examination.'

"Mr. Peak's application for insurance in appellant company was finally accepted on the 5th day of September, 1913. His policy was signed on the 22d day of August, 1913, and was mailed to the State agent of the company in Arkansas on September 6, 1913. The policy was delivered to Mr. Peak by the local agent of the company on the 17th day of September, 1913. The company first received information of Mr. Peak's physical condition as disclosed by the examination made by Doctor Meriwether on the 16th day of September, 1913. Immediately after it received the information on the 17th day of September, 1913, the company sent a telegram to its State agent to hold the policy for further instructions. The State agent called the local agent over the telephone and directed him not to deliver the policy. The policy, however, had been delivered a few hours before by the local agent to Mr. Peak.

"The insured died five months and two days after the policy was delivered to him, and Bright's disease of the kidneys caused his death. Mr. Peak executed a note for $ 151.40, payable to the order of J. L. Carter, the local agent of the company, for the first year's premium. The local agent and the State agent deposited this note as collateral security for money borrowed by them of a local bank. They remitted to the company its share of the proceeds. In other words, they paid to the company that part of the premium which went to it. The note in question provided that it should be paid in monthly installments, and the monthly installment due June 14, 1914, was not paid. The company went to the local bank where the note was deposited as security and paid the note. The note was returned to Peak by registered mail on June 29, 1914. He tried to pay it, but the agents of the company refused payment.

"Peak made no disclosure to the insurance company of what Doctor Meriwether had told him concerning his physical condition. If he had made such disclosure, the company would not have issued the policy and delivered it to him.

"Testimony was introduced on the part of the company tending to show that if Peak's condition on the 17th of August was as testified to by Doctor Meriwether, his urine could not have been normal on the 15th of August, 1913. Several physicians testified to this fact. A physician for appellee testified, however, that his condition might have been normal on the 15th, and that it was possible that there might have been a rise in his blood pressure in forty-eight hours, at the end of which time casts might show.

"Testimony was also adduced in favor of appellee tending to show that the specimen of urine furnished to Doctor Nichols was genuine. Evidence was also introduced tending to show that the reputation of the insured for truth and morality was good."

On the former appeal, among other things, we said:

"In the instant case the policy had not been issued, but the applicant had done all that had been required of him. We do not think he would be required, as a matter of law, to disclose to the company the result of a medical examination for insurance in any other company regardless of the fact whether or not he in good faith believed what the medical examiner had told him. For instance, when the applicant went to Doctor Meriwether and was examined by him for life insurance in another company, and Doctor Meriwether told him that he found albumen in his urine and other indications of Bright's disease, the applicant would not be required to state this fact to appellant company unless he believed it to be true; for, if he did not believe the statement made by Doctor Meriwether, he could not be said to conceal a material fact from the company. He might believe that his kidneys were only temporarily affected, and that the physician was...