Vredenburgh v. Liberty Nat. Life Ins. Co.

• Decision Date: 21 December 1944
• Docket Number: 1 Div. 229.
• Parties: VREDENBURGH v. LIBERTY NAT. LIFE INS. CO.
• Court: Alabama Supreme Court

20 So.2d 207

246 Ala. 251

VREDENBURGH v. LIBERTY NAT. LIFE INS. CO.

1 Div. 229.

Supreme Court of Alabama

December 21, 1944

E W. Pettus, of Selma, and C. L. Hybart, of Monroeville, for appellant.

H. H. Grooms and Spain, Davies, Gillon, Grooms & Young, all of Birmingham, for appellee.

The bill is in part as follows:

'5. That in and by the terms of said policies, it is provided in each of said policies that said respective policies are issued in consideration of the application of the insured and of the payment of the first annual premium; that in and by Part One of each of said applications (Exhibits 'A' and 'C'), which Part One is attached to and made a part of each of said policies, it is provided as follows:

"I agree on behalf of myself and of any person who shall have or claim any interest in any policy issued on this application as follows:

"(1) That any statements, promises or information made or given by or to any person soliciting or taking this application for a policy, or by or to any other person, shall not be binding on the Company or in any manner affect its rights, unless such statements, promises or information be reduced to writing and presented in this application to the Home Office of the Company; (2) that the insurance hereby applied for shall not take effect until a full first premium for the form of policy applied for in this application in accordance with the published rates of the Company is paid and the policy delivered to me during my lifetime and good health (and then only if I have not consulted or been treated by any physician since my medical examination submitted with this application); provided, however, that if such full premium is paid in advance to any authorized agent of the Company and I do so declare in this application and the binding receipt attached hereto is given by such agent, and if the Company after medical examination and investigation, shall approve and accept this application at its Home Office, then said insurance shall take effect and be in force as of the date of actual completion of all parts of this application, but only under and subject to the provisions of the policy applied for; (3) that this application, together with Part Two hereof, which I agree to complete promptly, and any policy issued in consideration thereof, shall constitute the entire contract between the parties hereto and then only if the Company at its Home Office agrees to issue a policy of insurance in accordance with this application; (4) that this application may be accepted or rejected only at the Home Office of the Company; (5) that delay in accepting or rejecting this application or delay in returning the premium shall not be construed as an acceptance, nor shall failure of the Company to give notice of the rejection of this application be construed as an acceptance.'

'6. Complainant avers and states that respondent was not in good health when said Policy Number 315164 was delivered to him, nor was he in good health when said Policy Number 315595 was delivered to him, in this: That on each of said dates, respondent was suffering from a serious ailment of the heart; that intervening the date of Part Two of each of said applications and the date of the delivery of said policies, respondent had consulted with or been treated by a physician for said heart ailment, which facts were unknown to the complainant; that the respondent has breached said policies of insurance; that said ailment from which said respondent was suffering was one which materially increased the risk of loss; that the consultation with or treatment by a physician intervening the date of Part Two of said applications and the date of the delivery of the policies, was for a condition which materially increased the risk of loss and was in and of itself, a fact which materially increased the risk of loss.

'7. Complainant avers that Question 9 B. of Part Two of each of said applications was in words and figures as follows: '9 B. Have you ever been under observation or treatment in any hospital, asylum or sanitorium?'

'Complainant further avers that respondent's answer to said Question 9 B. was as follows:

"'Dates Details and name and address of

every physician consulted

..............

B. yes 1941 Influenza Dr. Marcus

Skinner Selma, Ala.'

'Complainant avers that respondent's answer to said Question 9 B. aforesaid, was false in this, that respondent had been under observation or treatment at a hospital for a serious ailment other than that indicated in his answer to said Question 9 B, that is, heart trouble.

'8. Complainant avers that Question 10 B. of Part Two of each of said applications was in words and figures as follows:

"10. Have you ever consulted a physician for or have you ever suffered from any ailment or disease of:

"B. The Heart, Blood Vessels or Lungs?'

'Complainant further avers that respondent's answer to said Question 10 B. was as follows:

"'Yes Name of ailment No. of Date Duration Severity Results and name

or disease attacks and address of every

No. or injury physician consulted

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No. Appendectomy 1 1931 2 wks. Med. Dr. Marcus Skinner

Selma, Ala.'

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'Complainant avers that respondent's answer to Question 10 B. aforesaid, was false in this, that prior to the date of said application the respondent had consulted a physician for, or had suffered from a heart ailment or disease.

'9. Complainant avers that Question 12 of Part Two of each of said applications was as follows: '12. Have you ever consulted a physician for any ailment or disease not included in your above answers?'

'Complainant further avers that respondent's answer to said Question 12 was as follows:

"'Yes Name of ailment No. of Date Duration Severity Results and name

or disease attacks and address of every

No or injury physician consulted

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No '

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Complainant avers that respondent's answer to Question 12 aforesaid, was false in this, that respondent had consulted a physician for a disease or ailment not included in any of the answers given to any of the questions contained in Part Two of said applications and each of them, namely, he had consulted a physician for a serious ailment of the heart.'

STAKELY, Justice.

This is an appeal from a decree of the equity court overruling demurrers to the original bill of complaint. Liberty National Life Insurance Company (appellee) filed its bill of complaint against Peter Vredenburgh, III (appellant), in the circuit court of Monroe County, in Equity, seeking a declaration of the invalidity, or in the alternative the cancellation, of two certain life insurance policies in the amount of $10,000 and $50,000, respectively, and numbered respectively 315164 and 315595. The policies are on the life of appellant and are payable to Dorothy McElroy Vredenburgh, his wife, as beneficiary. With respect to these two policies, the allegations of the bill show the following case.

On September 20, 1942, appellant made written application to appellee for a policy of insurance in the amount of $10,000. This application is made a part of the bill of complaint as Exhibit A. It is designated as part 1 of the application. On November 3, 1942, appellant executed and forwarded to appellee part 2 of the application, which is made a part of the bill as Exhibit B. The policy, with parts 1 and 2 of the application attached thereto, was issued on November 11 1942, and delivered to E. F. Arnold, as agent of the appellant, who accepted it in behalf of appellant and made payment of the first premium thereon in the sum of $304.30 on, to-wit, November 15, 1942.

On November 21, 1942, appellant made written application for additional insurance with appellee in the amount of $50,000 and executed part 1 of the application, which is made a part of the bill as Exhibit C. On the assumption that there had been no change in the state of appellant's health since part 2 of the application for the $10,000 policy was executed on November 3, 1942, a copy of part 2 of the application for the $10,000 policy, together with part 1 of the application for the policy for $50,000, was attached to the policy for $50,000 and the policy for $50,000 so constituted, was executed by appellee and issued by appellee and delivered on November 29, 1942, to said Arnold, as agent for appellant. Accompanying the application, which was received by the appellee on November 23, 1942, was a check in payment of the first premium on the policy in the amount of $1521.50. Copies of the two policies are attached to the bill as Exhibits (1) and (2), respectively. Exhibit (2), which is a copy of the $50,000 policy, shows that part 2 of the application is the same with reference to both policies. Part 2 of the application is designated as 'Answers made to the Medical Examiner' and makes no reference to the amount of insurance applied for. Part 2 of the application was signed by appellant and contains the following paragraph: 'On behalf of myself and of each person who shall have or claim any interest in any insurance made hereunder, I declare that I have carefully read each and all of the above answers, that they are each written as made by me and that each of them is full, complete and true and to the best of my knowledge & belief and agree that the Company believing them to be true shall rely and act upon them.'

Further allegations of the bill appear in paragraphs 5, 6, 7, 8 and 9. These paragraphs will be set out in the...