Wharton v. Aetna Life Ins. Co.
| Citation | 48 F.2d 37 |
| Decision Date | 15 April 1931 |
| Docket Number | No. 8846.,8846. |
| Parties | WHARTON v. ÆTNA LIFE INS. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
W. E. Patterson, of El Dorado, Ark., and T. J. Gaughan, of Camden, Ark. (Patterson & Rector and Walter L. Goodwin, all of El Dorado, Ark., and Gaughan, Sifford, Godwin & Gaughan, of Camden, Ark., on the brief), for appellant.
S. Lasker Ehrman, of Little Rock, Ark. (Grover T. Owens, of Little Rock, Ark., on the brief), for appellee.
Before KENYON and GARDNER, Circuit Judges, and MUNGER, District Judge.
In this action appellant as plaintiff below sought to recover on three life insurance policies issued by the Ætna Life Insurance Company, appellee, upon the life of John Hawkins Wharton. The answer pleaded that false statements and representations had been made by the insured in his application for insurance, and that the policies had not become effective because they were not delivered during the good health of the insured. The policies, so far as their provisions are concerned, are all alike, except that two of them are for $10,000 each, while the other is for $5,000. They are all of the same date, and the statements in the application for each are identical. The policies all bear date August 11, 1928, and the applications all bear date July 27, 1928. The plaintiff is the beneficiary in the policies, and the surviving widow of the insured. The insured died November 18, 1928, of acute nephritis, commonly called Bright's disease. Each policy contained the following:
Each policy had attached an application signed by the insured. At the bottom of the application, over the signature of the insured, appears the following certificate: "I hereby certify that the above answers and statements are made by me, that they are correctly and fully recorded by the Medical Examiner, and that no material circumstance or information has been withheld or omitted concerning my past and present state of health and habits of life."
It was urged on the trial that the insured had made false answers to interrogatories 9 and 10 contained in the application. The application was on the printed form furnished by the insurance company, spaces being left in which to write the answers to the interrogatories. At the top of the page on which interrogatories 9 and 10 appear in the application, appear the following printed words in large type:
Subjoined to this, appears the following pertinent part of the application:
"The following answers must be made to and written by the Medical Examiner who should see that each answer is full and satisfactory. Neither the agent nor any third person should be present. If necessary, use space provided under `Additional and Explanatory Remarks.'
The answers to these interrogatories are in the handwriting of the defendant's medical examiner, and each application was dated July 27, 1928, and it appears from the evidence that on that date the insured, who was a resident of Union county, Ark., was solicited by an agent of the defendant company to take out life insurance. He was thereupon examined by the defendant's examining physician, and in due time the policies issued under date August 11, 1928, and were delivered to the insured August 21, 1928.
At the conclusion of the evidence, the defendant interposed the following motion for a directed verdict: "We have moved for an instructed verdict in this case on the ground that the applicant John Wharton made material misrepresentations in connection with the application in answer to No. 10, that he had not consulted or been treated by a physician within the past five years."
This motion was granted, and the plaintiff saved an exception. On this appeal a number of assignments of error appear in the record, but counsel have abandoned all of them, except such as relate to the action of the court in directing a verdict.
Where the evidence is of such a character as reasonable men may reach different conclusions, the case should be submitted to the jury. Mutual Life Ins. Co. v. Hatten (C. C. A.) 17 F.(2d) 889; Crookston Lumber Co. v. Boutin (C. C. A.) 149 F. 680;
---------------------------------------------------------------------------------------------------------------------
8. Full name of Proposed Insured John Hawkins Wharton
---------------------------------------------------------------------------------------------------------------------
9. Have you consulted a | Yes | Name of | No. of | Date | Duration | Severity | Results (if within
physician or practitioner | or No | disease | attacks | | | | 5 yrs. name and address
for or suffered from any | | | | | | | of every physician
ailment or disease of: | | | | | | | consulted)
|-------|--------------|---------|------|----------|----------|-------------------------
a. Brain or Nervous | | | | | | |
System? | No | | | | | |
b. Heart, Blood Vessels | | | | | | |
or Lungs? | No | | | | | |
|-------|--------------|---------|------|----------|----------|-------------------------
c. Stomach, Intestines, | | | | | | | Appendectomy —
Liver, Kidneys or | | | | | | | without drainage —
Bladder? | Yes | Appendicitis | 1 | 1913 | 1 Mo. | Acute | Recovery
d. Enlarged Glands, | | | | | | |
Tumors, Goitre or | | | | | | |
Ulcers? | No | | | | | |
|-------|--------------|---------|------|----------|----------|-------------------------
c. Rheumatism or Gout? | No | | | | | |
-----------------------------|-------|-------------------------------------------------------------------------------
10. Have you consulted or | Yes | Name and Address of Each | Date | Reason for Consultation, Examination
been examined or treated | or No | | | or Treatment
by any physician or | | | |
practitioner not named | | | |
above within the last | | | |
five years. | No | | |
---------------------------------------------------------------------------------------------------------------------
United States Can Co. v. Ryan (C. C. A.) 39 F.(2d) 445; Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 233, 74 L. Ed. 720. In considering this question the court must assume that the evidence for the party against whom the verdict was directed, proves all that it reasonably may be found sufficient to establish. In other words, it must be accepted as true for the purpose of determining the correctness of the court's ruling. The rule was stated by the Supreme Court in Gunning v. Cooley, supra, as follows:
With this rule in mind, we turn to an examination of the testimony. First, it should be noted that the motion for a directed verdict was limited to one issue, to wit, whether the insured made material misrepresentations in answering interrogatory No. 10. It is the settled rule of this court that, in order to predicate error upon the refusal of a court to sustain a motion or request to direct a verdict, the motion or request Public Utilities Corporation v. McNaughton (C. C. A.) 39 F.(2d) 7, 8; Mansfield Hardwood Lumber Co. v. Horton (C. C. A.) 32...
To continue reading
Request your trial
-
St. Paul Reinsurance Company, Ltd. v. Commercial Financial Corp., No. C00-4080 (N.D. Iowa 11/20/2000)
...fraud an applicant's failure to disclose facts about which no questions were asked will not avoid the policy."); Wharton v. Aetna Life Ins. Co., 48 F.2d 37, 44 (8th Cir. 1931) ("In the absence of fraud, the applicant's failure to disclose facts about which no questions are asked will not av......
-
Wayne v. New York Life Ins. Co.
...are indistinguishable, then the language is ambiguous and must be construed in a light most favorable to the insured. Wharton v. Aetna Life Ins. Co., 8 Cir., 48 F.2d 37; American Surety Co. v. Normandy State Bank, 8 Cir., 108 F.2d It is urged by defendant that in the Feinberg case the insur......
-
New Castle County v. Hartford Acc. and Indem. Co.
...156 F.2d 663, 667 (10th Cir.1946); First State Bank v. New Amsterdam Casualty Co., 83 F.2d 992, 994 (5th Cir.1936); Wharton v. Aetna Life Ins. Co., 48 F.2d 37 (8th Cir.), cert. denied, 284 U.S. 621, 52 S.Ct. 9, 76 L.Ed. 529 (1931); Preferred Risk Mutual Insurance Co. v. Hites, 125 Ill.App.2......
-
Metropolitan Life Ins. Co. v. Madden, 9719.
...Ins. Co. v. Clemmer, 4 Cir., 79 F.2d 724, 103 A.L.R. 171; New York Life Ins. Co. v. McCurdy, 10 Cir., 106 F.2d 181; Wharton v. Ætna Life Ins. Co., 8 Cir., 48 F.2d 37; New York Life v. Odom, 5 Cir., 93 F.2d ...