Washington Nat. Ins. Co. v. Martin

• Decision Date: 04 December 1933
• Docket Number: No. 4-3221.,4-3221.
• Citation: 65 S.W.2d 551
• Parties: WASHINGTON NAT. INS. CO. v. MARTIN.
• Court: Arkansas Supreme Court

65 S.W.2d 551

WASHINGTON NAT. INS. CO. v. MARTIN.

No. 4-3221.

Supreme Court of Arkansas.

December 4, 1933.

Appeal from Circuit Court, Pulaski County, Second Division; Richard M. Mann, Judge.

Action by Frank Martin against Washington National Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Appellee brought this suit on an accident insurance policy, issued October 21, 1931, by the appellant company, which undertook to pay the insured $100 per month for a period not exceeding five consecutive years "for bodily injury effected during the life of the policy solely through violent, external and accidental means," which policy was in full force from October 29, 1931, when insured was engaged in repairing an automobile and his foot slipped accidentally while he was lifting a motor transmission, which weighed more than 200 pounds, and same fell upon his right leg and side injuring him permanently and totally for a period of 5 months and partially disabling him for a further period of 60 days. The monthly benefit for partial disability provided for in the policy was $50 per month. Appellee prayed judgment for $500 total disability for 5 months, $100 for partial disability, or a total of $600 with 12 per cent. penalty and reasonable attorney's fees.

The appellant company admitted the issuance of the policy. Denied that it agreed in said policy to pay $100 per month for a period of 5 years for total disability, and that the policy was in force at the time of the injury complained of, and that plaintiff was engaged in repairing an automobile or injured in the manner and to the extent alleged. Denied that plaintiff had complied with the terms of the policy and was entitled to recover, and also that he had given notice of the injury in accordance with the terms of the policy or furnished proof of any claim that he might have under said policy, pleading specially that the plaintiff had failed to give notice of the injury. Alleged further that he made misrepresentations as to his health and habits in the application wherein he stated that he was a sober and temperate person, but that he was at the time of and prior to the accident addicted to the excessive use of intoxicating liquors, and that his statement therein was false and known by him to be false and made for the fraudulent purpose of inducing defendant to issue said policy, and pleaded this as a special defense. That insured fraudulently stated further in his application that he had not been disabled by accident or illness or received medical or surgical attention during the 10 years prior to the making of said application nor collected any claims of any kind for insurance before. That the statements were false, and that he had been insured by certain companies, specifying them, which had paid him eight different claims for accident and sickness during the time, and that such false representation and warranties voided the policy.

It was also claimed that he had falsely stated that no insurance company had refused to issue or renew a life insurance policy on him prior to the application on this policy, which statement was false and known to be so by him, and that two companies, naming them, had refused to issue the plaintiff an insurance policy about a month prior to the application made herein, which facts were pleaded as special defense.

On the trial the insured denied that he had stated in his application that he had not been disabled by accident or injury or had not received medical attention for 10 years prior thereto. He admitted receiving the different amounts from other insurance companies for injury and sickness as alleged and shown by defendant. Said no question was asked him about such injuries or money received therefrom by the agent in filling out the application. Stated that he answered truthfully the questions asked him, denied answering them as they were written by the agent, and said they were not written as he gave them and were not correctly stated on the copy of the application that was returned to him with the policy.

The doctors testified as to the injury, its extent, and as to the time of the resulting total and partial disability therefrom.

Naylor, general agent of the appellant company, testified that he issued the policy, identified a copy of the application attached thereto as a correct copy of the original presented to him. Stated that, if the application had shown that insured had had several claims against other companies for accident and sickness, he would not have issued the policy. Said that his company did not issue policies where applicants had made several claims against other companies for accident and sickness. Said, also, he assumed that Martin signed the application, as the company would not have issued the policy without an application, and that the policy was issued from an application he signed, a copy of which was attached to the policy. He did not have the original application, as it had been sent to the home office, but would not have issued the policy if he had not thought that plaintiff, Frank Martin, had signed the application. He had never met Martin and did not know him. His agent, Don Cross, brought the application to him and he did not know whether it was Frank Martin's signature on the application or not. Cross was not with the company at the time suit was brought and had not been for several months. He lived in the city, and a subpœna had been issued for him, but he could not be found. That he had not seen Cross for 6 months, but that he had tried to find him and had gone to his house, but was unable to locate him.

The other testimony shows the different claims that had been paid by various companies to the insured during the time the application stated that he had received no moneys from other companies, and this was admitted by appellee on the trial, and it was also admitted by him that he had had the policy in his possession since it was issued, and that the purported copy of the...