*1 Administratrix R. FINDLEY, Ellen WOLFE, Deceased A. Delores the Estate COMPANY INSURANCE v. TIME 80-67 Arkansas
Supreme Court delivered Opinion June Johnson, A. Johnson, by: & Spears, Sloan James appellant.
Rieves, Shelton, & appellee. Rieves appellee The an issued insurance Justice. Frank Holt, policy providing major medical coverage to Delores A. Wolfe 23, 1975, April effective the date of the application. No physical 9, 1975, examination required. July On Mrs. Wolfe a shortly consulted doctor and was diagnos- thereafter having as cancer of the appellee cervix. When the refused payment expenses on submitted Mrs. Wolfe for extensive hospitalization and medical treatment in connection with the cancer, she instituted this suit. The appellee pleaded an af- pursuant firmative defense (c) Stat. Ann. Ark. § 66-3208 1966), (Repl. primarily asserting that Mrs. Wolfe was ex- periencing abnormal vaginal bleeding prior applica- and, therefore, tion given she had a false answer to the follow- ing question on the application: insurance
To the your best of knowledge and you belief have any dependents listed: . . .
Had a female irregularity? disorder or No. appellee
The also avers that this answer was material to its acceptance of the and if risk that Mrs. Wolfe had answered it truthfully, policy the would not have been issued to her. Mrs. Wolfe died during pendency the of this action which was revived in administratrix, the name of her the appellant.
A jury returned a verdict for appellant the the amount $11,815.49, of expenses amount of medical stipulated by parties. court, The after finding the answer as to irregularity incorrect and the insurer would not have issued policy known, had the true facts been entered judgment n.o.v. favor of the appellee. Hence appeal.
The appellant first contends that the trial court erred in entering judgment n.o.v. as there was substantial evidence jury judgment verdict. A n.o.v. is
259 support- evidence is no substantial where proper aas judgment to a entitled is party verdict, 237, Curtis, Ark. 506 v. 256 Motors law. Westside matter 919, Mourton, Ark. v. Spink (1974); 2d S.W. we review appeal (1962). On 2d 665 S.W. light therefrom deducible inferences reasonable all n.o.v. judgment whom against party favorable most substantiality Curtis, The supra. v. Motors Westside rendered. Co. et Construction Pickens-Bond law. is a we There (1979). Ark. Case, 266 al v. recognized: ‘evidence as defined has been Substantial *3 will, with it that character force is of sufficient
that compel certainty precision, and material reasonable or in- It must force the other. way or one a conclusion conjecture.’ or suspicion a beyond to pass the mind duce Substantial 549, page 2760. 4 Evidence, § Vol. on Ford a furnishing ‘evidence defined as also been has in can fact issue which fact from of basis substantial satisfied not is test inferred; and reasonably be which or suspicion a creates merely which equal gives or which a scintilla than more to no amounts inferences.’ inconsistent to support 58, S&L, 260 Ark. Ark. 538 v. Central Bd. Ark. S&L also See (1976). 505 of substantial argument appellant’s of support In Wolfe’s Mrs. verdict, recites she to worked had she application; before record work perfect two and 9, almost July until week hours per regular had she completed; was application after the months one-half years prior than for more doctor a not consulted two doctors testimony of appointment; July 9th the cancer was when determine impossible it is effect was she Wolfe believed Mrs. which menopause, present; first women; first noticed she episode a normal experiencing, vaginal daily almost illness, or excessive symptoms or in periods, irregular bleeding mid-June at appointment a making doctor’s weeks before two about bleeding any thought she employer; of her suggestion associated with menopause. She had no illness of kind her knowledge and considered herself in good health at the time the application Therefore, was completed. asserted, it is she was not experiencing any menstrual irregularity April on and answered the truthfully.
However, she further stated in deposition her that she told her July doctor on that she had bleeding been vaginally every day almost past for the two months. She didn’t know exactly day what it started. This that, doctor testified although unclear, his records were she told him that for two and one-half months she had been experiencing either hot flashes, cramps, bleeding. Her cycle normal menstrual five days or six every 28 days. Another physician testified that him she told had a year she one history of heavy vaginal bleeding with frequency weeks, a every two and she had noted a change her cycle year prior admission to the hospital. Mrs. Wolfe deny did not or recall making this statement or that she stated him history gradual progressive vaginal bleeding. She did telling recall . this doctor at the hospital, she where was admitted for treat- ment 1975, August, that she had experienced heavy vaginal every bleeding two weeks starting April of 1975. she, She then verified that first heavy noticed the bleeding around first of April, and it was the same type of *4 period menstrual that she was having prior to that. The issue presented is whether the female disorder or menstrual irregularity manifested itself her to knowledge nad belief before or after the application. It is not whether she was in good when health she made the application. When we reyiew the appellant’s evidence most favorably her, to as we do on must we appeal, cannot reasonably and confidently in- fer from its and inconsistencies uncertainties that there is substantial evidence to support jury’s the verdict.
Appellant next contends the appellee failed to establish that the false answer on application the was to material the placement of the coverage or that the appellee was prej- udiced thereby. It is argued that permitting the underwriter for appellee the to answer a hypothetical, ques- cumulative prejudicial. and improper, say it that Suffice to the tion was that contradiction without testified specifically underwriter facts been true the had issued have been not would policy revealed.
Affirmed. JJ., dissent. and Stroud,
Purtle with agree cannot I dissenting. Justice, I. Purtle, John turns on case The this case. in majority is: The
answer. . . . you have belief knowledge your the best To irregularity? or disorder female had negative. inwas answer The going was she thought she testified appellant The it was thought she cases in such menopause,
through say I cannot irregular. to be period for normal normal awas this her belief not it was lawof matter as a a doctor not seen all, had she After occurrence. natural in- this for applied she the time prior years than more for several time full work continued She policy. surance a doc- consulted she before was issued policy after months that the me persuade case nothing There tor. at normal was health her actually believe not did appellant question. critical answered she time many came questions response confusing Her She bed. death her onwas ill and was when she later months medica- taking was pounds approximately weighed Certainly, taken. deposition time her at tion propound- questions about confused her be reason counsel. experienced allow- court trial is because I dissent reason Another *5 found jury After the question. decide jury If there aside. verdict set court appellant, favor enough jury, to the go enough changed Nothing the verdict. jury the case the submission between the setting aside of the verdict. Had the decided the other way, I would agreeable have been affirming the verdict.
I am Stroud, authorized to state J., joins inme dissent. ALLEY,
Thane G. Guardian of the Person and Estate Cyrus v. Raboo RODGERS and JOHNSON Henry MORGAN 80-71 S.W. 2d Supreme Court of Arkansas
Opinion delivered June