Volunteer State Life Insurance Company v. Henson, 15914.

• Decision Date: 27 June 1956
• Docket Number: No. 15914.,15914.
• Citation: 234 F.2d 535
• Parties: The VOLUNTEER STATE LIFE INSURANCE COMPANY, Appellant, v. Mabel HENSON, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

234 F.2d 535 (1956)

The VOLUNTEER STATE LIFE INSURANCE COMPANY, Appellant, v. Mabel HENSON, Appellee.

No. 15914.

United States Court of Appeals Fifth Circuit.

June 27, 1956.

E. Cage Brewer, Jr., Clarksdale, Miss., Roy A. Scruggs, Chattanooga, Tenn., Brewer & Brewer, Clarksdale, Miss., Miller, Martin, Hitching & Tipton, Chattanooga, Tenn., of counsel, for appellant.

William H. Maynard, Clarksdale, Miss., Jas. A. Blount, Charleston, Miss., Maynard, Fitzgerald & Maynard, Clarksdale, Miss., of counsel, for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

JONES, Circuit Judge.

The appellant, The Volunteer State Life Insurance Company, issued a master group policy of credit life insurance to Greenwood Production Credit Association for the purpose of insuring the lives of those who were indebted to the credit association. On March 17, 1954, a certificate was issued under this policy designating F. E. Henson, Sr. as an insured to the extent of $5,000, with his wife, Mabel Henson, named as beneficiary. For convenience and brevity we will sometimes refer to the insurance company as Volunteer, to F. E. Henson, Sr. as the insured, and to Mabel Henson as the beneficiary. The policy contained, among other provisions, the following:

"It is agreed that no insurance hereunder shall become effective as to any Borrower, and there shall be no liability hereunder on account of any insurance with respect to such Borrower until a certificate shall be issued and delivered to such Borrower during his lifetime and while he (or she) is in good health."

The foregoing was incorporated in the certificate and there it was also provided that:

"This insurance may not be issued to and will not be valid for persons under 18 or over 65 years of age or who are not in good health when obtaining this certificate".

The insured died July 27, 1954. In the death certificate Dr. W. E. Sheffield listed the "Disease or Condition Directly Leading to Death" as "Coronary Thrombosis", and showed "Antecedent Causes" as "Coronary Sclerosis" for ten years and "Essential Hypertension" for fifteen years. In a blank on the death certificate form for "Other Significant Conditions" the doctor inserted "Obesity".

The beneficiary furnished Volunteer proof of death of the insured, and demanded payment of the amount of $5,000. On the refusal of Volunteer to make payment, the beneficiary brought suit with diversity of citizenship the basis of Federal jurisdiction. Volunteer answered, alleging that at the time of the delivery of the certificate the insured was not in good health. Filed by Volunteer on the same day as its answer was a motion for summary judgment. Filed with the motion was a copy of the death certificate, and an affidavit of Dr. Sheffield reciting that over the preceding eight years or more he had treated the insured who had hypertension for that period, that the insured weighed over 300 pounds, that he had told the insured of his ailment and advised him to slow down in his work, and that insured knew he had hypertension which had existed prior to the date of the insurance certificate. Volunteer also submitted in support of its motion affidavits of three other doctors, all of which said that a person who has coronary sclerosis or essential hypertension is not in sound health or good health. Two of these doctors declared that a life insurance company would reject the application for life insurance from a person found to have these ailments. The attorneys for Volunteer made an affidavit that they had seen a letter from Lyle Motley Clinic in Memphis, Tennessee, in which it was reported that the blood pressure of the insured was 210/120 in April, 1940.

The beneficiary, plaintiff in the district court, countered with a motion for summary judgment and exhibits. She produced the letter from the Lyle Motley Clinic. In addition to giving the insured's blood pressure the letter reported negative...