Lincoln Income Life Insurance Company v. Milton
412 S.W.2d 291
Ark.
1967
Check Treatment

*1 124 undertakes,

tract, which a builder to furnish labor and by materials, agreement not within type falling of an province employment agency.

Upon record this case find tenable we holding basis the contract is invalid. question The judgment must therefore be affirmed. Company

Lincoln Income Life Insurance v. Callie M. 412 S. W. 2d 5-4153 March Opinion delivered Grumpier, O’Connor, & Wynne Mays, for appellant.

Jabe Hoggard, appellee.

George Justice. This is an action Eose Smith, brought by appellee to recover under a sickness $125 and accident policy. The insurance company contends insured’s condition before existed the policy *2 coverage excluded from and was therefore was issued by in used as in contract: “‘Sickness’ clause the this which com- first means disease or' sickness this mences date after the becomes evident, or first effective pol- commencing while this which hereof and causes loss hearing > icy with- the case court, in force.” Tl is trial plaintiff, finding judgment jury, for a entered the out physical disorder cause her did not know the that she of policy. applied when for the she dispute facts. about the material is real There July a medi- 19, 1965, without was issued on years In then 36 cal examination. Mrs. was old. soliciting agent applying policy she informed the for the good knew. was far as she that she in health as policy in the issuance the In after of November, July, Moore, B. L. late Dr. insured the consulted the practicing Dr. his with son. was medicine Sr., who by explained trial, son at the his Moore’s records, complaint feels was chief “that she disclosed that the period last menstrual The first notation her bad. vaginal A September, uri- and examination 1964.” was nalysis patient- placed negative. in his were Dr. Moore hospital apparently x- days, for tests five the pres- rays. period hospitalization the of That resulted ent claim. thyroid gland was that Mrs. Milton’s was found

It regu- producing underactive, insufficient hormones bodily by thyroid gland the functions controlled the late functions, give —including rise to the ovarian prescribed thyroid pills. With Dr. Moore menstruation. periods began patient’s medication menstrual the again continued were found have December and normally months some seven she examined by Dr. Moore, later Jr. by

Among discussed these two counsel the cases directly presented: upon the State now bear most issues Stamper, 228 Ark. 1128, Ins. 312 Co. v. W. Nat. S. Life 2d and American Neal, Co. Texas Ins. (1958), 234 Ark. S. W. 2d 741 Each af- (1962). case a firmed judgment plaintiff. Stamper for the In the case the insured, most her had small during life, a. on It bony growth back of her head. caused no trou- until ble the issuance of the year pol- more than after sued icy upon. The in size and growth then increased gave rise expenses to the and medical incurred hospital by court’s plaintiff. judgment sustaining trial authority insured weight we said “the is that in- should be deemed have had its *3 at ception the first itself became time manifested or it or symptoms a when existed allow active, sufficient to diagnosis case, accurate so that recov- reasonable of the be ery can had, even or though disease, germs the infec- tion was present time, in to body the the excluded prior if the condition was latent, and not inactive, perhaps (cid:127)discovered.” similar followed, That case on was facts, in the Neal ease, supra. See Old Ins. Equity Life also Co. 241 Ark. Crumby, 982, 411 S. W. 2d 292 (1967). cases, in many those- and to others the same ef- fect, the insured had infirmity sóme trivial supposedly or abnormality the took policy on, effect. Later the however, condition for changed for the worse and the either first time actually became diagnos- or became, a as, able disease coverage sickness or within falling the of policy. right The protection the insured’s under to the properly contract was upheld.

The situation is here significantly different. There is indication that Mrs. no Milton’s affliction changed for between the worse the of issuance in and July the hospital her in November. She ad- candidly confinement mits that had not had a period she for ten menstrual she the went purchased months before insurance. She Dr. testimony.: to see Moore because bad. she Her felt “I had of I complaint neck; so went my head and ” Moore; Dr. notation the doctor’s record first in the had patient’s was last been fourteen period months After an office examina- unenlightening earlier. put hospital, Mrs. Milton the where tion Moore Dr. thyroid deficiency. from she a found suffered was it brought prescribed about return nor- a Pills were mal health. declaring for reasonable basis find

canWe expense a appellee’s hospital attributable to the policy, language the the 'ch,w. or disease effective after evident the first commenced became or contrary, the To examinations contract. the date the merely that Mrs. the fact confirmed and tests thyroid from or more a. months for suffered fourteen condition had deficiency. no evidence that There is subject to become time for first worsened or had judge diagnosis. observed, the trial is true, It applied pol- for did know when she insured not icy an underactive was attributable that her trouble thyroid gland. an under- that such It clear, however, is and expenses hospital activity led to the did exist that it Milton did not know the medical Mrs. now in issue. That applied explanation for when she condition her holding first that the condition not reason commenced after the date or became effective evident *4 contract.

Reversed dismissed. J., concurs.

Fogleman, concurring. I John A. concur Justice, Fogleman, my fully opinion A statement con- in the in this case. opinion Equity Company curring in Old Insurance Life Crumby, 241 2d 292 that 982, Ark. S. W. v. before must at be least can said there excluded, be have it in- make the been sufficient manifestation diagnosis, sured the facts seek a had reference to particular policy. Even case and the terms of so, principle application also here. has origin do with the of the “sickness”. case this critical time the “sickness” time is the appellee’s became evident. this Under the case facts certainly make her such would condition was aware diag- well issued a medical before the sought. should be nosis

Joseph Brooks et al al G. Baker et W. 5-4162 412 S. W. 2d 271

Opinion delivered March *5 Rose, Meek, House, Barron, Nash & Williamson, for appellant.